United States Court of Appeals For the Ninth Circuit

Form No. 7

B & p nrorf) s co

San Hrancisco

Law Library

INo.

Presented by

EXTRACT FROM BY-LAWS.

Section 9. No book shall, at any time, be taken
from the Library Room to any other place than to
some court room of a Court of Record, State or Fed-
eral, in the City of San Francisco, or to the Chambers
of a Judge of such Court of Record, and then only upon
the accountable receipt cf some person entitled to the
use of the Library. Every such book so taken from
the Library, shall be returned on the same day, and in
default of such return the party taking the same shall
be suspended from all use and privilegos of the
Library until the return of the book or full compensa-
tion is made therefor to the satisfaction of the
Trustees.

shall have the leaves folded
dog-eared, or otherwise soiled,
party violating chis i revision,
a sum not exceeding the value
of the book, or to replace the volume Yy a new one, at
tlie discretion of the Trustees or Executiv Commit-
tee, and shall be liable to be suspended from all use
of the Library till any order of the Trustees or Execu-
tive Committee in the premises shall be fully complied
with to the satisfaction of such Trustees or Executive
Committee.

Sec. 11. No books
down, or be marked,
defaced or injured. A
shall be liable to pay

/

^ No. 2157

■" — — ■■> <j)

/ IN THE

i

United States Circuit Court of Appeals

NINTH CIRCUIT

OTIS ELEVATOR COMPANY,

Plaintiff in Error,
vs.

CHRISTIAN LUCK,

Defendant in Error.

On Writ of Error to the United States District
Court, For the District of Oregon.

TRANSCRIPT OF RECORD.

)EIVED

.121912 FILED

MONCKTON,

«"«• AUG 2 8 1912

7V P,

No.

IN THE

United States Circuit Court of Appeals

NINTH CIRCUIT

OTIS ELEVATOR COMPANY,

Plaintiff in Error,
vs.

CHRISTIAN LUCK,

Defendant in Error.

On Writ of Error to the United States District
Court, For the District of Oregon.

TRANSCRIPT OF RECORD.

IN THE

United States Circuit Court of Appeals

NINTH CIRCUIT

OTIS ELEVATOR COMPANY,

Plaintiff in Error,
vs.

CHRISTIAN LUCK,

Defendant in Error.

Names and Addresses of Attorneys upon this Writ:

For the Plaintiff in Error:

Griffith, Leiter & Allen,

Electris Building, Portland, Oregon

For the Defendant in Error:

C. W. Fulton,

Fenton Building., Portland, Oregon

INDEX.

Page

Answer 16

Assignments of Error 128

Bill of Exceptions 27

Bond on Removal 11

Bond on Writ of Error 134

Certificate to Transcript on Removal 15

Citation on Writ of Error 137

Complaint 1

Instruction to Which Exception was Taken .... 122

Instructions of the Court to Jury 113

Instructions Requested by Defendant, etc 122

Judgment Entry 26

Minutes of Trial — Motion for Directed Verdict

Denied 25

Order Allowino^ Writ of Error 127

Order Denyino; Motion for Directed Verdict. . . 25

Order Extending Time to File Record 139

Order of Removal 13

Order That Exhibits be Transmitted to U. S.

Circuit Court of Appeals 40

Petition for Removal 8

Petition for Writ of Error 126

Reply 22

Summons 7

TESTIMONY ON BEHALF OF PLAIN-
TIFF:

ELLIA, JACK 60

In Rebuttal 112

ii Otis Elevator Company vs. Christian Luck.

Page
TESTIMONY ON BEHALF OF PLAIN-
TIFF—Continued :

HYDE, GEOEGE 65

LUCK, CHRISTIAN 128

Recalled in Rebuttal Ill

LUCK, MRS. LIZZIE 74

TAYLOR, H. A 70

WALKER, RALPH C 31

TESTIMONY ON BEHALF OF DEFEND-
ANT:

BRISTOW, VAL 85

ERICKSON, JOHN J 81

GREENE, R. W 74

Recalled Ill

REV AU, PAUL 76

SHEPARD, R. S 92

Verdict 27

Writ of Error 135

In the District Court of the United States for the
District of Oregon.

Be it remcmbersd, that on the 24 clay of July, 1911,
there was duly filed in the Circuit Court of the
United States for the District of Oregon, a
Transcript on Removal in words and figures as
follows, to-wit:

[Complaint.]

In the Circuit Court of the State of Oregon for
Multnomah County,
CHRISTIAN LUCK, Plaintiff,

vs.
OTIS ELEVATOR COMPANY, a corporation.

Defendant.

The above named plaintiff, complaining of the
a])ove named defendant, for his cause of action al-
leges :

I.

That the defendant is, and during all the time in
this complaint mentioned was, a private corporation
incorporated, organized and existing under the laws
of the State of New^ Jersey, and is and was during all
said time, as such corporation, engaged in the trans-
action of its corporate business in the State of Ore-
gon, and among other things the said defendant was
incorporated to engage in the enterprise and business
of selling, installing and erecting elevators.

II.

That heretofore on the 24th day of February, 1910,
plaintiff was and had been for some time prior there-

2 Otis Elevator Company

to in the employ of defendant in the capacity of me-
chanic and under and by the terms of such employ-
ment plaintiff was required to do and perform such
work as should from time to time be required of him
by defendant in the construction, erection and instal-
lation of elevators and among other work plaintiff
was required to assist in the work of placing and con-
necting the casing in the well of plunger elevators
erected by defendant. That on the 24th day of Feb-
ruary, 1910, defendant was erecting and installing a
plunger elevator in a building in the City of Portland,
Oregon, and plaintiff was sent and directed by de-
fendant to work as aforesaid thereon. That in the
installation and erection of such elevator it became
and was necessary to, and defendant did, dig a well
approximately eighty-six feet in depth and three feet
by three feet, six inches, in width, and to construct
therein a casing to provide for the operation of such
elevator, and as such casing was placed in such well
and carried up from the bottom towards the top it
was necessary to fill in around it with earth and grav-
el, which earth and gravel was let down into the well
by means of an iron bucket attached to a cable and
actuated and operated by machinery and appliances
then and there employed by defendnt for that pur-
pose. That plaintiff entered upon such work and em-
ployment and was engaged thereat on the said 24th
day of February, and in the course of his employment
it became necessary for him, the ])laintiff, to and he
did, in the course of said employment, on said 24th
day of February, 1910, decend into said wc^ll in order

vs. Christian Luck 3

to assist in uniting two sections of such casing. That
it became and was the duty of the defendant to pro-
vide a suitable and safe place for the doing of such
work by the plaintiff and to provide safe and suital)le
machinery and appliances for operating the said
bucket and lowering it into the well.

III.

That the said bucket was an iron bucket about 17
inches square and 48 inches in length, and when filled,
as hereinafter mentioned, weighed approximately
five hundred (500) pounds. That when and while be-
ing lowered into such well, said bucket, as defendant
then and there, and long prior thereto, well knew,
would swing from side to side, and strike the sides of
such well and any section or part of such casing then
extending above the bottom of such well or above the
point to which such well had then been filled; and,
unless securely fastened to said cable, said bucket in
so striking would be thrown off and separated from
said cable. And it became and was the duty of defend-
ant to so securely fasten and attach said bucket to
said cable that in or by so swinging or striking it
w^ould not be thereby detached or unfastened from
said cable. But the said defendant, disregarding its
duty in the respects aforesaid, carelessly and negli-
gently failed and neglected to securely or properly
fasten the same to said cable, but on the contrary said
defendant carelessly and negligently employed for
the purpose of attaching said bucket to said cable an
unsuitable and unsafe iron hook or device so formed
that when said bucket would strike the side of the

4 Otis Elevator Company

well or strike said casing it would thereby be thrown
off and separated from said hook and drop to the
bottom oi the well.

IV.

That this plaintiff was not informed of the unsafe
nature or character of the said hook or the fact that
it was liable at any time or at all to become unfasten-
ed or disconnected from the bucket, and had no notice
whatever of the unsuitable or unsafe character of
such hook, but this plaintiff avers that the said de-
fendant well know for a long time prior to the 24th
day of February, 1910, and for more than one month
prior thereto, that the said hook was an unsafe and in-
secure device for fastening and connecting the said
cable and bucket together, and well knew that it was
liable at any time while descending into such well to
become disconnected from said bucket and thereby
cause or permit the same to drop into the well and in
and upon any person who might be in such v/ell; and
said defendant so knowing the nature and character
of such hook and that it was unsuitable for such pur-
pose and having notice thereof, the said defendant did
carelessly and negligently on the said 24th day of
February, and while plaintiff was, as aforesaid, in said
well, provide and direct the said unsuitable and un-
safe hook to be used for the purpose of connecting and
attaching the said bucket to the said cable and caused
the said bucket so attached to l)e filled with earth
and gravel and lowered into the said well while this
l)laintiff was there, as aforesaid, in the discharge of
his duty and without any knowledge of the unsafe or

vs. Christian Luck 5

unsuitable nature or character of the said device em-
ployed, as aforesaid, for attaching the said bucket and
the said cable together, and therupon the said bucket
being so filled with earth and gravel v^as lowered into
the said well, and while the said bucket was descend-
ing into the well and when it was within a distance of
telve feet or thereabouts of and above this plaintiff
the said bucket struck either the side of said well or
said casing and said hook was thrown off and parted
and separated from the said bucket, precipitating it
and causing it, the said bucket, to fall into the well
and in and upon this plaintiff, who was then and there
exercising due care, diligence and caution, and the
said bucket did then and there fall into the well and in
and upon this plaintiff and struck the plaintiff's back
and spine, knocking him down and inflicting a severe
and permanent injury to his back and spine and by rea-
son thereof the plaintiff became sick and ill and was
eonlined to his bed for three weeks and suffered great
bodily pain and was compelled to and did employ
physicians and nurses to care for him and was unable
to continue his usual or anv work or vocation. And
this plaintiff further avers that the injuries so inflict-
ed on him were and are of a permanent nature and
character so that he will never again regain his for-
mer strength or health and will never again be able
to engage in the work or employment which he had
followed and was wont to pursue prior thereto, or to
perform any character or kind of work.

V.

That this plaintiff is of the age of twenty-eight

6 Otis Elevator Company

years and prior to said accident was a man of unus-
ual strength and capacity for work and was regularly
earning from thirty to fifty dollars per week in fol-
lowing his vocation as mechanic. That since said in-
juries said plaiitiff has been unable to perform such
work or any work and consequently has been unable
to earn any wages or salary because of his inability to
work owing to said injuries inflicted as aforesaid.

VI.

That by reason of said negligence and want of care
on the part of the said defendant in the selection and
employment of the appliances aforesaid and of the
wrongful, careless and negligent acts of defendant
aforesaid this plaintiff was injured, as aforesaid, and
by reason of such injury was and is damaged in the
sum of Twenty Thousand ($20,000) Dollars.

WHEREFORE, Plaintiff demands judgment
against the defendant for the sum of Twenty Thou-
sand Dollars, together with his costs and disburse-
ments in this action.

C. W. FULTON,

Attorney for Plaintiff.

STATE OF OREGON,

County of Multnomah — ss.

I, Christian Luck, being first duly sworn, deposes
and say, that I am the plaintiff in the above entitled
action and that the above and foregoing compL'iint
is true as T verily believe.

CHRISTIAN LUCK.

vs. Christian Luck 7

Subscribed and sworn to before me this 8th day of

May, 1911.

(Seal.) C. W. FULTON,

Notary PubHc for the tSate of Oregon.

[Endorsed] : Filed May 8, 1911.

F. S. FIELDS,

Clerk.
By H. C. Smith,

Deputy.

[Summons.]

In the Circuit Court of the State of Oregon,
for the Countv of Multnomah.
CHRISTIAN LUCK, . Plaintiff,

vs.
OTIS ELEVATOR COMPANY, a corporation,

Defendant.
To Otis Elevator Company, a corporation, the above
named defendant.
IN THE NAME OF THE STATE OF ORE-
GON: You are hereby required to appear and an-
swer the complaint filed against you in the above en-
titled action within ten days from the date of the ser-
vice of this summons upon you, if served within this
County, or if served within any other County of this
State, then within twenty days from the date of the
service of this summons upon you; and if you fail to
answer for want thereof, the plaintiff will take judg-
ment against you for the sum of twenty thousand dol-
lars, and for his costs and disbursements in this ac-
tion.

C. W. FULTON,
Attorney for Plaintiff.

8 Otis Elevator Company

STATE OF OREGON,

County of Multnomah — ss.

I, R. L. Stevens, Sheriff of said State and County,
do hereby certify that I served the within Summons
within said State and County, on the 9th day of May,
1911, on the within named defendant, Otis Elevator
Company, a corporation, by personally delivering a
copy thereof, prepared and certified to by C. W. Ful-
ton, Attorney for the plaintiff, together with a copy of
copy thereof, prepared and certified to by C. W. Ful-
ton, Attorney for the plaintiff, to Arthur J. jNlcComb,
Statutory Agent and Attorney in fact for the said de-
fendant corporation personally and in person.
R. L. STEVENS,
Sheriff of Multnomah County, State of Oregon.

By J. H. Bulger,

Deputy.
Received 4:00 P. M., May 8, 1911,

R. L. STEVENS,

Sheriff Multnomah County, Oregon.

By J. H. J., Deputy.

[Endorsed] : Filed May 13, 1911.

S. F. FIELDS,

Clerk.
By A. L. Buchtel,

Deputy.
[Petition for Removal.]
/;/ tJic Circuit Court of the State of Oref^^on,
for the County of Multnouiali.
CHRISTIAN LUCK, Plaintiff,

vs.
OTIS ELEVATOR COMPANY, a corporation,

Defendant.

vs. Christian Luck 9

Petition for removal to the Circuit Court of the
United States for the District of Oregon.
To the Honorable, The Circuit Court of the State of
Oregon for the County of Multnomah, Honor-
able C. U. Gantenbein, Presiding Judge:

Your petitioner, Otis Elevator Company, defendant
above named, respectfully shown to this Honorable
Court that the said Otis Elevator Company is defend-
ant in this action and that the same is of a civil nature
and that the matter in dispute in this cause exceeds
the sum or value of two thousand dollars, exclusive of
interest and costs, to-wit: the sum of twenty thousand
dollars.

That the controversy herein is between citizens and
residents of different States; that the said Christian
Luck, plaintiff above named was, at the time of the
commencement of this action, ever since has been and
still is a citizen and resident of the State of Oregon,
residing at Portland, in Multnomah County, in said
State, and your petitioner, Otis Elevator Company, a
corporation, was at the time of the commencement
of this action, ever since has been and still is a cor-
poration duly organized and existing under and In^
virtue of the laws of the State of New Jersey, and
a citizen and resident of said State of New Jersey and
of no other State, and is not a citizen or resident of
the State of Oregon.

That your petitioner desires to remove this action
before the trial thereof into the next Circuit Court of
the United States to be held in he District of Oregon,
in Portland in said State and District. And your pe-

10 Otis Elevator Covvpany

titioner offers herewith good and sufficient bond and
surety for its entering into the Circuit Court of the
United States for the District of Oregon, on the first
days of its next session, a copy of the record in this
action, and for paying all costs that may be awarded
by the said Circuit Court of the United States if the
said Circuit Court of the United States shall hold that
this action w^as wTongfully and improperly removed
thereto.

And your petitioner herein prays that the said sure-
ty and bond may be accepted ; that this action may be
removed into the next Circuit Court of the United
States to be held in the District of Oregon, pursuant
to the Statutes of the United States in such cases
made and provided, and that no further proceedings
may be had herein in this Court, and that your Hon-
orable Court will make an order approving said bond,
and an order of removal of said action, and to that
end the defendant and your petitioner will ever pray.
OTIS ELEVATOR COMPANY,

By R. S. Shepard,
Griffith & Leiter and F. J. Lonergan, Attorneys
for petitioner and Defendant as aforesaid.

STATE OF OREGON,

County of Multnomah — ss.

I, R. S. Shepard, being first duly sworn, depose and
say that I am the Manager of the Otis Elevator Com-
pany, the defendant and petitioner above named;
that I have read the foregoing petition and the whole
thereof, and the same is true as I verily believe.

R. S. SHEPARD.

vs. Christian Luck 11

Subscribed and sworn to before me this nineteenth
dayof May, A. D., 1911.

F.J. LONERGAN,
(Notarial Seal) Notary Public for Oregon.

STATE OF OREGON,
County of Multnomah — ss.

Due service of the within is hereby accepted

in County, Oregon, this 19th day of May,

191.— by receiving a copy thereof, duly certified to as

such, by attorney for

C. W. FULTON,

Attorney for Plaintiff.
[Endorsed]: Filed May 19, 1911.

F. S. FIELDS,

Clerk.
By A. L. Buchtel,

Deputy.

[Bond on Removal.]

In the Circuit Court of the State of Oregon for the
County of Multnomah.
CHRISTIAN LUCK, Plaintiff,

vs.
OTIS ELEVATOR COMPANY, a corporation,

Defendant.

KNOW ALL MEN BY THESE PRESENTS,
That the Otis Elevator Company, a corporation, duly
organized and existing under the laws of the State of
New Jersey, and having an office and place of busi-
ness in the City of Portland, Multnomah County,
Oregon, as principal, and the National Surety Com-

12 Otis Elevator Covvpany

pany of New York, a corporation, organized and ex-
isting under and by virtue of the laws of the State of
New York, having an office and place of business in
the City of Portland, Oregon, as Surety, are holden
and stand firmly bound unto Christian Luck, the
plaintiit above named in the penal sum of Xine Hun-
dred ($900.00) Dollars for the payment whereof well
and truly to be made unto the said Christian Luck,
his heirs, representatives and assigns, we bind our-
selves, our successors and assigns, jointly and firmly
by these presents.

Upon the condition, nevertheless, that whereas, the
said Otis Elevator Company, the defendant above
named, has filed its petition in the Circuit Court of
the State of Oregon for the County of Multnomah
for the removal of a certain cause therein pending
wherein the said Christian Luck is plaintiff and the
said Otis Elevator Company is defendant, to the Cir-
cuit Court of the United States for the District of
Oregon.

Now, if the said Otis Elevator Company shall en-
ter into said Circuit Court of the United States for
the District of Oregon on the first day of its next reg-
ular session a copy of the record in said action, and
shall w^ell and truly pay all costs that may be made
by said Circuit Court of the United States, if said
Circuit Court shall hold that said action was wrong-
fully or improperly removed thereto, then this bond
shall be void, otherwise it shall remain in full force
and virtue.

In witness whereof, the said Otis Elevator Com-

vs. Christian Luck 13

pany and the said National Surety Company of New
York have caused these presents to be executed and
their corporate names to be hereunto subscribed, by
their duly authorized officers, this nineteenth day of
May, A. D., 1911.

OTIS ELEVATOR COMPANY,

By R. S. Shepard,

Principal.

NATIONAL SURETY COMPANY OF NEW
YORK,
By Jas. McI. Wood, its Atty, in Fact. Surety.
(Corporate Seal.)
Approved :

C. U. GANTENBEIN,

Judge.
[Endorsed] : Filed May 19, 1911.

F. S. FIELDS,

Clerk.
By A. L. Buchtel,

Deputy.

[Order of Removal.]

BE IT REA/IEMBERED, That at a regular term
of the Circuit Court of the State of Oregon, for the
County of Multnomah, begun and held at the County
Court House in the City of Portland, in said County
and State on Monday, the 1st day of May, A. D., 1911,
the same being the FIRST MONDAY in said month,
and the time fixed by law for holding a regular term
of said Court.

Present, Hons. John P. Kavanaugh, Robert G.

14 Otis Elevator Company

Morrow, Henry E. McGinn, C. U. Gantenbein and
William N. Gatens, Judges.

WHEREUPON, on this Monday the 22nd day of
May, A. D., 1911, the same being the 19th Judicial day
of said term of said Court, among other proceedings
the following was had, to-wit :

In the Circuit Court of the State of Oregon for the
Comity of Multnomah.

Order Dep. 4 B. 9389.
CHRISTIAN LUCK, Plaintiff,

vs.
OTIS ELEVATOR COMPANY, a corporation,

Defendant.

At this time comes the defendant by its Attorneys,
Griffith & Leiter and F. J. Lonergan, and having
heretofore and within the time provided by law, filed
its petition for the removal of the above entitled ac-
tion from the Circuit Court of the State of Oregon to
the Circuit Court of the United States for the District
of Oregon, which petition sets forth the reasons for
said removal, to-wit: that the parties hereto are resi-
dents and citizens of different States, and that the
sum in controversy exclusive of interest and costs,
exceeds the sum of two thousand dollars, to-wit: the
sum of twenty thousand dollars, and said petitioner
having presented and filed its bond in the sum of nine
hundred ($900.00) dollars, with good and sufficient
surety pursuant to statute and conditioned according
to law, and notice to plaintiff of this application hav-
ing been given, the plaintiff appearing by his attor-
ney, Honorable C. W. Fulton, and the defendant ap-

vs. Christian Luck 16

pearing by its attorneys, Griffith & Leiter and F. J.
Lonergan, and

It appearing to this Court that said bond and pe-
tition are sufficient to authorize the removal of said
action to the Circuit Court of the United States for
the District of Oregon.

Now, therefore, it is hereby considered, ordered
and adjudged that this Court proceed no further in
this action and that the same be, and is hereby trans-
ferred to the Circuit Court of the United States for
the District of Oregon, and that The Clerk of this
Court prepare a full and complete copy of the record
in this Court in the above entitled action and certify
to the said papers as a copy of said record and for-
vv^ard the same to the Clerk of the Circuit Court of the
United States for the District of Oregon at Portland
in the County of Multnomah, State of Oregon.

C. U. GANTENBEIN,

Judge.

Dated May 19 1911.

[Certificate to Transcript on Removal.]

In the Circtiit Court of the State of Oregon for the
County of Miiltnoinah.
STATE OF OREGON,

County of Multnomah — ss.

I, F. S. Fields, County Clerk and ex-Officio Clerk
of the Circuit Court of the State of Oregon, for the
County of Multnomah, do hereby certify that the
foregoing copies of pleadings, papers, orders and.
journal entries constituting all of the proceedings in
the case of Christian Luck, Plaintiff vs. Otis Elevator

16 Otis Elevator Company

Company, Defendant, have been by me compared
with the originals thereof, and that they are true and
correct transcripts of such original pleadings, papers,
orders, journal entries as the same appear of record
and on file at my office and in my custody.

In witness whereof, I have hereunto set my hand
and affixed the seal of said Circuit Court the 19th day
of June, 1911.

F. s. fiel:ds,

Clerk.
(Seal.) By R. A. Reid,

Deputy.
And afterwards, to-wit, on the 25 day of July, 1911,
there was duly filed in said Court, an Answer in
words and figures as follows, to-wit:

[Answer.]

In the Circuit Court of the United States for the
District of Oregon.

CHRISTIAN LUCK, Plaintiff,

vs.
OTIS ELEVATOR COMPANY, a corporation,

Defendant.

Comes now the defendant above named and for its
answer to plaintiff's complaint.

Admits the allegations contained in paragraph 1 of
said complaint.

Denies each and every allegation contained in para-
graph II of said complaint except that defendant ad-
mits that on said twenty-fourth day of February,
1910, said plaintiff was in the employment of defend-
ant as a foreman in charge of the installation of an

vs. Christian Luck 17

elevator in a building on West Park and Morrison
Streets in the City of Portland, Oregon.

Denies each and every allegation contained in para-
graph III of said complaint.

Denies each and every allegation contained in para-
graph IV of said complaint except that defendant ad-
mits that on February twenty-fourth, 1910, a bucket
fell down and upon plaintiff while in said elevator
well.

Denies each and every allegation contained in para-
graphs V and VI of said complaint.

Defendant for a first, further and separate answer
and defense to said complaint alleges the following
facts to-wit:

I.

That on said twenty-fourth day of February, 1910,
said plaintiff was in the employ of defendant in the
capacity of foreman and on said date was engaged in
the construction and installation of an elevator in the
building on West Park and Morrison Streets now
occupied by Olds, Wortman and King; that said
plaintiff as foreman was in charge of the men per-
forming said work and also had charge of and super-
vision over the tools, instrumentalities and appliances
used in the performance of said work ; that it was a
part of plaintiff's duty as foreman to inspect said in-
strumentalities and appliances used in the perform-
ance of said work and to see that the same were in
good condition and repair and safe and suitable for
the doing of said work.

18 Otis Elevator Company

11.

That defendant provided and had on hand a large
and sufficient stock of hooks and other devices suit-
able for and properly used in fastening buckets of the
character described in said complaint to a cable so
that the same could be safely lowered into a well
such as mentioned in the complaint; that plaintiff had
the right and it was his duty to select from said stock
of hooks and other devices such a hook as could be
used with reasonable safety for the purpose mention-
ed in said complaint and acting in pursuance to his
duty in that respect plaintiff did voluntarily select the
hook which was used at the time of said accident in
fastening said bucket to said cable and said hook in
said complaint comiplained of so selected by said
plaintiff was used at the time of said accident in fas-
tening said bucket to said cable.

III.
That on the twenty-fourth day of February, 1910,
plaintiff descended into said well which was about
thirty (30) feet deep, and while in said well said
plaintiff directed the men working under him to send
down to him a sledge hammer which was done by
means of placing the same in the bucket referred to
in said complaint and fastened to a cable by means of
said hook so selected by said plaintiff. That in de-
scending down into said well said bucket in some way
became unfastened from said hook so that the bucket
fell down and upon said ])kiintiff. That if said hook
so selected by plaintiff was a defective or improper a])-
ph'ance plaintiff was himself negligent in carelessly

vs. Christian Luck 19

and negligently selecting and using or permitting to
be used such unsuitable or unsafe hook or appliance
and that plaintiff's injuries, if any received, were oc-
casioned solely by reason of plaintiffs own negli-
gence and without any fault or negligence on the part
of this defendant.

Defendant for a second, further and separate an-
swer and defense to said complaint alleges the follow-
ing facts, to-wit:

I.

That on the twenty-fourth day of February, 1910,
plaintiff was in defendant's employ as foreman en-
gaged in the construction and installation of an ele-
vator in the Olds, Wortman and King building in
Portland, Oregon; that on said date plaintiff descend-
ed into the well of said elevator for the purpose of
plumbing the casing of said well which was about
thirty (30) feet deep; that while said plaintiff was
down in said well hole he directed the workmen en-
gaged with him in the performance of said work and
over whom he had control and supervision, to send
down to him a sledge hammer needed by plaintiff in
the doing of said work; that in response to said order
from plaintiff said fellow servants of plaintiff placed
said sledge hammer in a bucket containing more or
less earth and by means of said bucket attached to a
cable b}^ means of a hook, sent said sledge hammer
down to plaintiff; that said fellow servants of plain-
tiff so carelessly and negligently attached said bucket
to said cable by means of a hook that said bucket in
descending dovv^n said well struck a part of the cas-

20 Otis Elevator Company

ing thereof and thereby became unfastened from said
cable and fell down and upon the plaintiff; that plain-
tiff's injuries were received by reason of the careless-
ness and negligence of his fellow servants in fasten-
ing said bucket to said cable without wiring said hook
so that the bucket could not come off and without any
fault or negligence on the part of this defendant.

Defendant for a third, further and separate answer
and defense to said complaint alleges the following
facts, to-wit:

I.

That on the twenty-fourth day of February, 1910,
plaintiff was in defendant's employ in the capacity of
foreman and on said date and for some time prior
thereto said plaintiff was engaged in the construction
and installation of an elevator in the Olds. Wortman
and King building in Portland, Oregon; that said
plaintiff as foreman had charge of and supervision
and control over the instrumentalities and appliances
used in the performance of said work, which tools and
instrumentalities were chosen and selected by said
plaintiff; that on said date and for some time prior
thereto said plaintiff was thoroughly familiar with
and knew the kind of hooks used in fastening the
bucket described in said complaint to the cable by
means of which said bucket was lowered into said ele-
vator well and plaintiff then and there well knew and
fully understood that said bucket so fastened by
means of said hook to said cable would swing from
side to side and strike the sides of said well and any

vs. Christian Luck 21

part of the casing thereof extending upward from the
bottom of said well, and well knew and fully under-
stood the likelihood of said bucket in so swinging and
striking to be thrown off and separated from said
cable, and said plaintiff at said time and place well
knew and thoroughly understood and appreciated the
hazards and dangers of working in said well while
said bucket so fastened to said cable by means of said
hook and filled or partly filled with earth and gravel
was being lowered down into said well.

11.

That notwithstanding such knowledge, under-
standing and appreciation on the part of plaintiff,
plaintiff on said date undertook to and did work down
in the bottom of said well while said bucket so fas-
tened and filled was being lowered therein without
any remonstrance or complaint to this defendant or
any one representing it ; that the hook or device fas-
tening said bucket to said cable was unsuitable or un-
safe or insecure or that said bucket was dangerous or
improperly fastened or liableto become disconnected
and fall while being lowered into said well and plain-
tiff then and there and thereby and by reason of the
premises assumed any and all risk of injury to him on
account of said appliances or any thereof and of work-
ing in said well with the said appliances which were
chosen and selected by plaintiff.

WHEREFORE, defendant demands judgment for its
costs and disbursements herein.

GRIFFITH & LEITER and F. J. LONERGAN,

Attorneys for Defendant.

22 Otis Elevator Co-mpaiiy

STATE OF OREGON,
County of Multnomah — ss.

I, A. J. McComb, being first duly sworn, depose
and say that I am the selling agent of the Otis Ele-
vator Company, defendant in the above entitled ac-
tion, and that the foregoing answer is true as I verily
believe.

A. J. McCOMB.

Subscribed and sworn to before me this 24th day
of July, 1911.

F. J. LONERGAN,
Notary Public for Oregon.

[Endorsed] : Answer, filed July 25, 1911.

G. H. Marsh,

Clerk.

And afterwards, to-wit, on the 7 day of August, 1911,
there was duly filed in said Court, a Reply in
words and figures as follows, to-wit :

[Reply.]

In the Circuit Court of the United States for the
District of Oregon,

CHRISTIAN LUCK, Plaintiff,

vs.
OTIS ELEVATOR COMPANY, a corporation,

Defendant.

Comes now the plaintiff in the above entitled cause
and for reply to the answer of the defendant therein,
admits, denies and alleges as follows:

vs. Christian Luck 23

I.

Replying to the first further and separate answer
and defense in said answer alleged, this plaintiff de-
nies the same and each and every allegation therein
contained and the whole thereof, except that this
plaintiff admits that the said defendant was on the
24th day of February, 1910, engaged in the construc-
tion and installation of an elevator in the building oc-
cupied by Olds, Wortman and King, and that this
plaintiff v/as in the employ of the said defendant as in
the complaint in this cause alleged and not otherwise,
and this plaintiff also admits that on said 24th day of
February, 1910, he descended into the said well and
the said bucket became unfastened from said hook
and fell down upon him, as in the complaint in this
action it is alleged and under the circumstances and
conditions as in said complaint alleged and not oth-
erwise.

11.

Replying to the second further and separate an-
swer and defense in said answer alleged, this plain-
tiff denies the same and each and every allegation
therein contained and the whole thereof, except that
plaintiff admits that the defendant was on the 24th
day of February, 1910, engaged in installing an ele-
vator in the Olds, Wortman and King building, and
that plaintiff was in the employ of the defendant as
in the complaint in this action alleged and set forth
and not otherwise, and plaintiff admits also that he
was on said day down in the well and that the said
bucket becan^.e unfastened from said cable and fell

24 Otis Elevator Company

down upon him as described in said complaint under
the circumstances and in the manner in the complaint
described and not otherwise.

III.

Replying to the third further and separate answer
and defense in said answer alleged, this plaintiff de
nies the same and each and every allegation therein
contained and the whole thereof.

WHEREFORE, This plaintiff, having fully replied to
the said answer, demands judgment as in his com-
plaint demanded.

C. W. FULTON,

Attorney for Plaintiff.

STATE OF OREGON,
County of Multnomah — ss.

I, Christian Luck, being first duly sworn, deposes
and say, that I am the plaintiff in the above entitled
action and that the above and foregoing reply is true-
as I verily believe.

CHRISTIAN LUCK,
Subscribed and sworn to before me this 7th day of
August, 1911.
(Seal.) HARRY L. RAFFETY,

Notary Public for the State of Oregon.
[Endorsed] : Reply, Filed August 7, 1911.

G. H. MARSH.

Clerk.

And afterwards, to-wit, on the 13 day of ]\Tarch, 1912,
the same being the 9 Judicial day of the Rec-ular
March, 1912, Term of the District Court, District
of Oregon, present: the Honoral)k^ R. S. P>EAN,

vs. Christian Luck 25

United States District Judge presiding, the fol-
lowing proceedings were had in said cause, to-
wit:

[Minutes of Trial — Motion for Directed Verdict

Denied.]

In the District Court of the United States for the
District of Oregon.

CHRISTIAN LUCK, No. 3815

vs.
OTIS ELEVATOR COMPANY, March 14, 1012
This cause came on regularly at this time for fur-
ther trial pursuant to adjournment: jury and attor-
neys present as heretofore and thereupon J. H. Elian,
Geo. Hyde, H. A. Taylor, Lizzie Luck, were sworn
and examined as witnesses for plaintiff and there
upon plaintiff rests and thereupon R. W. Greene,
Paul Ravoe, J. J. Erickson, R. Bristoe and R. S. Slir])-
pard were sworn and examined on behalf of defend-
ants and thereupon defendant rests and thereupon C.
Lock and J. H. Elian were recalled and examined in
rebuttal and thereupon defendant moved for a di-
rected verdict in favor of the defendant and there-
upon after argument of counsel motion ordered sub-
mitted and by the Court taken under advisement and
thereupon after due consideration it is Ordered tliat
said motion be and hereby is denied and thereupon the
hour of adjournment having arrived it is Ordered
that this cause be and hereby is continued for fur-
ther trial until Friday, March 15, 1912, at 10 A. M. ard
jury empaneled in cause on trial excused until March
15, 1912, at 10 A. M.

26 Otis Elevator Covxpany

And afterwards, to-wit, on the 15 day of March, 1912,
the same being the 13 Judicial day of the Regular
March, 1912, Term of said Court; present: the
Honorable R. S. BEAN, United States District
Judge presiding, the following proceedings were
had in said cause, to-wit:

[Judgment Entry.]

In the District Court of the United States for the
District of Oregon.

CHRISTIAN LUCK No. 3815

vs.
OTIS ELEVATOR COMPANY March 15, 1912.

This cause came on regularly at this time for fur-
ther trial pursuant to adjournment; jury and At-
torneys present as before and thereupon after argu-
ment of counsel for respective parties and instruc-
tions of the Court cause submitted to the jury and the
jury retired to consider of their verdict and there-
upon the jury having agreed upon their verdict were
brought into court and returned into court their ver-
dict as follows: ''We, the jury in the above entitled
cause find for the plaintiff and against the defendant
and assess the damages of the plaintiff at $7000.C0
Henry A. Oleman, Foreman" which said verdict is
received by the Court and ordered filed and thereup-
on it is Ordered that the plaintiff Christian Luck have
and recover of and from the defendant Otis EIevcU(M
Company, a corporation, the sum of Seven Thouscind
($7000.00) Dollars and his costs and disbursemer.ts
herein taxed at $

vs. Christian Luck 27

And afterwards, to-wit, on the 15 day of March, 1912,
there was duly filed in said Court, a Verdict in
words and figures as follows to-wit:

[Verdict.]

hi the District Court of the United States for the
District of Oregon.

CHRISTIAN LUCK, Plaintiff,

vs.
OTIS ELEVATOR COMPANY, a corporation.

Defendant.

We, the jury in the above entitled action find for
the plaintiff and against the defendant and assess the
damages of the plaintifif at $7000.00. Foreman.

HENRY A. OLEMAN.
[Endorsed] : Filed March 15, 1912.

A. M. CANNON,

..Clerk-
By F. H. Drake,

Deputy.

Aid afterwards, to-wit, on the 13 day of May, 1912,
there was duly filed in said Court, a Bill of Excep-
tions in words and figures as follows, to-wit:

[Bill of Exceptions.]

In the District Court of the Uuitcd States for the
District of Oregon.

CHRISTIAN LUCK, Plaintiff,

vs.
OTIS ELEVATOR COMPANY,

Defendant.

28 Otis Elevator Company

BE IT REMEMBERED, That this cause came on
for trial in the above entitled Court on the thirteenth
day of March, 1912, before the Honorable R. S. Bean,
District Judge, presiding. Plaintiff appearing in per-
son and by C. W. Fulton, of Counsel, and defendant
appearing by Griffith & Leiter and F. J. Lonergan,
of Counsel, and thereupon, a jury of twelve men hav-
ing been duly called, empaneled and sworn to try said
cause, Christian Luck was called as a witness on be-
half of himself, and being first duly sworn, testified
as follows:

TESTIMONY OF CHRISTIAN LUCK.

That he is the plaintiff in this case, and in February,
1910, was in the employ of defendant as a mechanic,
there being one mechanic to a helper. Flis duties
wxre to perform his share of the work outlined by
Shepard, Superintendent for defendant. They were
digging wells for plunger elevators for Olds, Wort-
man and King building, in Portland, Alultnomah
County, Oregon. The hole was below the basement,
and had to extend as far beneath the basement as the
elevator went above the basement floor. The hole
was approximately eighty-six feet deep. Inside the
hole sheet iron casing had to be installed, one-six-
teenth of an inch in diameter. This casing was put in
in sections, approximately twelve feet to a section.
The sections are only three feet long, but they were
driven together on the top to get a length of about
twelve feet, so as not to have to put a section on every
two or three feet. The casing is set ])crfectly pluml),

vs. Christian Luck 29

and then the hole around the casing is filled with ma-
terial dug out of the hole, such as cement gravel, clay
and some sand.

At the time of the accident the well hole had been
filled up to about thirty feet from the top, and the
casing extended about thirteen feet above the level
of the fill in the hole. The well hole was three feet
in diameter one way and three feet six the other.

The material used to fill the well hole was let down
into it by means of a square bottomless bucket, that
is, — the bottom could be removed in order to dump
the material from it, there being not room enough to
tip the bucket. This bucket was operated by an elec-
tric hoist, with a three-eighths plow steel cable. The
steel cable was connected with the bucket by means
of a hook made out of an iron bolt one-half inch in
thickness. The hook used on the day of the accident
was just about the shape of the model handed the
witness. (Plaintiff's Exhibit ''3".) (

The bucket when filled with cement gravel, as it
was at the time of the accident, weighed between 450
and 500 pounds.

''Well, about 12 o'clock — oh, five minutes to 12,
they got through filling, and had this section filled up
to the top; it was ready for another section of casing
— the casing which was practically 12 feet long. Well,
the first ^hing after dinner, we put on another section
of casing, taking a sledge hammer and blocks and
driving it together and put the plumb line through,
and put the cover on and braced it and we had all this
done and the tools lying in the bottom of the well, the

30 Otis Elevator Company

sledge hammer and whatever we used to put this cas-
ing in. So we took these tools and moved them over
to one corner and told them to send down a bucket of
dirt. They sent down a bucket of dirt. The idea of
sending this bucket of dirt down there was to dump
the dirt and then take the tools and take them up on
top."

They had all the tools in the hole and the casing
in and the bucket was being lowered so that when
the cement gravel was dumped the tools could be put
into the bucket and hoisted up. Luck was in the bot-
tom intending to put the tools in the bucket. The
bucket came down and he heard a funny noise, as if
the bucket hit something, and all at once the bucket
fell and struck him in the middle of the back, knock-
ing him down and rolling him up in a ball. Luck
couldn't get out from under the bucket; it was too
heavy for him to handle. Two men took the bucket
off him and dumped the bucket, and hoisted him out
of the hole. Jack Elia was in the well, standing with
one foot on the casing and one foot on the ladder, -w
about the top of the casing, twelve feet above Luck,
Elia and another man helped remove the bucket,
which was too heavy for plaintiff to handle.

Was in good healthy condition prior to the acci-
dent. Bucket struck him in the middle of the back.
Since the accident has been unable to do any work,
bend over and practically unable to do anytliing.
There is a lump on his back where the bucket struck
him. Shows the lump to the jury. The lump made
its appearance right after the accident. Did not have

vs. Christian Luck 31

it before the accident. Dr. Bettnian treated him the
evening of the injury and frequently examined him
since the injury. Dr. Walker examined him and took
an X-Ray photograph of his back three weeks before
the trial.

Thereupon the plaintiff was excused temporarily.

RALPH C WALKER, being called and sworn,
testified as follows, on direct examination :

Is a physician and surgeon of eight years' experi-
ence, graduated from University of Oregon, and with
a year's experience in Berlin. His specialty is taking
X-Ray photographs of the human body.

On February twelfth, 1912, examined the plaintiff
and took a photograph, for the purpose of discovering
the nature or character of any defect in his back or
spine.

''I simply examined to see whether or not there was
any protuberance of any kind in the spine, and I
found that this one portion in the neighborhood of
the twelfth dorsel vertebra — the vertebra to which the
ribs are attached — the spinal process in that neigh-
borhood protruded, several of them; three, as I re-
member, rather prominent, but this one in particular."

There is a quite prominent lump on his back. The
X-Ray photograph taken differs from ordinary photo-
graphy.

'Tt is known as X-Ray-radiograph or shadowgraph,
as it is sometimes called, because you depend upon
the shadow cast by the X-Ray. For instance, you
have your plate — in taking a picture of the hand, the
hand would be placed on the plate in this manner;

32 Otis Elevator Company

the X-Ray tube, which is the source of Hght, is placed
above it, and is centered over the point which you
wish to get; for instance, if there happens to be a
broken bone here suspected, we center over the bone
and your tube is placed at an average distance of 20
inches, and in that w^ay the shadow is cast on your
plate here; the flesh being more or less transparent,
and the shadow of the bone is cast here on your plate;
and then it is developed in the ordinary w^ay, with
the ordinary negative and dried."

This gives a shadow of the bones, and more or less
a shadow of the flesh, depending upon the part of the
body, and truly represents the conditions of the bones,
and their relation to each other, when centered prop-
erly over the part, which was done in taking this
photograph.

''I found — in taking this picture, I took two views —
one taken directly through his body with the patient
lying on the plate, which would show whether there
was any curvature or not up and down, in looking at
the man in this direction or looking from the back in
the same direction, and I found that the spine was
straight that way; but in taking the view through the
side. I found that the bodies of one of the vertebrae
had been crushed and was wedge shaped, so that it
would make the spine in a sort of triangle, and pro-
jecting at the bone where the lump is on his back."

The condition found was not a normal nor healthy
condition.

"I will have to explain that two views were taken
on this one plate, one-half the plate being covered

vs. Christian Luck 33

with lead, while the other half was being exposed,
and then the lead shifted to this side, covering the
part that was exposed, and covering the part — you
can see the line here where it was lapped over. In
this part it shows the view of the spine taken through
with the plate placed here at the back, and you can see
the ribs coming off from either side here. This light
streak down through the center is the spinal column,
the vertebrae rather, and you can see the outline of
the different vertebrae. These dark lines between
represent the cartilage that is placed in betwen the
bones and acts as a cushion. This is the twelfth rib,
or last or floating rib, as it is termed. When you
have this plate closer, you can examine and you will
notice that the line through here is not cjuite as dis-
tince as it is there, either below or above.

This shows that — I will have to show it on this side
here, which is a side view, and you can see the ric,
the light streak coming down this way. This is the
vertebrae here, and in this place back here is where
the spinal column or nerves come down. Now, this is
the vertebrae that has been injured. Can you all see
that plainly? Now if you will notice this vertebrae
above — I am drawing the outline of that with my
pencil — that is square. You take the one below here
— it is square, but you take this one, you see it is
wedge shaped, showing there has been a crushing in
here, or what is termed a compression fracture of this
body of the vertebrae. That could happen without
having any pressure on the spinal cord here, just the
same as you could crack a nut without breaking the

34 Otis Elevator Company

kernel. The reason now this doesn't show so plainly
here as the one below or above, is the fact that the
light coming through this way, you see part of the
body of this vertebrae, and in this one below the light
comes straight through and this one above, it comes
a little straighter, and you also see that by this ver-
tebrae being wedge shaped, or compressed, the out-
line of the spine is changed, so that you have more
or less of a triangular condition, and this being the
edge of the back, the spinous process which comes out
like that would be prominent. This one above slight-
ly so, the one below slightly so, the others would be
practically in a normal condition."

The X-Ray plate was introduced in evidence, and
marked Plaintiffs Exhibit ''1".

Whereupon, Counsel for plaintiff asked the witness
to take Gray's Anatomy and point out some of the
pictures representing the spinal column and vertebrae
in a normal, healthy condition. To which Counsel
for defendant objected as being incompetent, irrelev-
ana and immaterial. Whereupon, the Court ruled that
the witness could use said picture to illustrate. To
which ruling Counsel for defendant then and there
excepted, which exception was allowed.

Whereupon, said witness testified as follows:

"This is an illustration of the dorsal vertebrae, or
the vertebrae to which the ribs are attached. This is
the twelfth, which is the one which has been injured.
Now, this is the body of the vertebrae here, and here
is the spinous process that extends up the back, that
you feel when you feel a man's back. You don't feel

vs. Christian Luck 35

the body of the vertebrae, because that is in front, on
the inside. The rib is attached here, and goes around
toward the front. Now, the spinal column lies right
in there. I illustrate with my pencil, between the
spinous process and the body of the vertebrae. Here
is one here showing the lumbar vertebrae, which will
illustrate the point. This is one of these vertebrae
showing the body here looking down on it from the
top; here is your spinous process here. Here is the
opening through which the spinal column itself pass-
es.

The vertebrae of plaintiff's back has been smashed
so that this portion here is shorter than the back, (in-
dicating by pencil on the picture, the extent to which
the twelfth vertebrae in plaintiff's back deviates from
the normal condition.)

Whereupon the said picture mentioned by the wit-
ness and used by the witness as an illustration was
offered and received in evidence and marked plain-
tiff's Exhibit "2" but neither the book itself nor any
other portion thereof was received in evidence.

Whereupon, the witness further testified:

"Q. What is the effect of that condition on the
individual — on the plaintiff?

A. Well, at the beginning there may be very lit-
tle effect, and very often these compression fractures
are overlooked because in the condition of the spine
when a man examines — a physician examines the pa-
tient, he always looks for either what we call motor
or sensitory disturbances ; that is, a man will lose eith-
er motion or sensation on account of pressure on the

36 Otis Elevator Co-mpany

spine, and before the advent of the X-Ray, these con-
ditions were not recognized, and since the X-Ray, in
making picture here, we show these conditions do ex-
ist, and show these fractures of the spinal column —
or the spine itself, do exist without being very much
pressure, if any pressure on the spinal column, or
spinal cord, as it is termed. Now, with this at the be-
ginning there might not be much of any symptom,
that is, might not have any tickling sensation or
numbness, or lose any motion, but later on, when the
bone callous forms there, as it does when any bone is
broken, and nature sends out this bone callous to re-
pair, it enlarges and throws out an excess amount;
like a piece of iron that is welded together; and this
may press on the spinal cord and cause more or less
symptoms, perhaps pain or tickling sensation, or
something of that kind.

Q. How will it affect him as to physical labor —
lifting?

A. Well, as to physical labor, the bodies of the
vertebrae take more or less of the weight, the greater
proportion of the weight, and, as we term it, it is the
back bone to which the muscles are attached, and it
must be more or less rigid, and when one of these is
outside like it is here — partially outside, it changes
your line, and you have a triangular instead of a
straight line, which is weaker; will make his back very
much weaker in his labors.

Q. State what the fact is as to such an injury be-
ing permanent?

A. It is permanent, because you can't repair that

vs. Christian Luck 37

amount of bone that has been compressed. It will
always remain in that position, that wedge shaped.

Q. He will never recover from it?

A. No sir.

Q. Will he be able to do hard — to apply himself
to hard physical labor, which involves stooping over
and lifting hereafter?

A. I should say not.

Q. Could you form an opinion as to what caused
the condition which you found from this examination
of the plaintiff's back?

A. It must have been caused by a force applied in
such a manner as to either double the patient forward
so as to bring these vertebrae together and crush it,
or by a blow of some kind, so as to drive them to-
gether.

Q. You heard the plaintiff describing in court
here a few moments ago, when he was on the witness
stand, about this bucket filled with cement gravel,
falling the distance that he described and striking
him in the back?

A. Yes sir.

Q. Might such a blow as he there described as
having received, produced the condition that you
found in his back?

A. It would, yes."

On cross-examination, said witness testified as fol-
lows:

The first photograph was taken through from the
anterior to the posterior, and showed the vertebrae
to be straight. The second photograph was taken

88 Otis Elevator Company

from the side and shows a disturbance of practically
one vertebrae there being a slight disturbance of the
first lumbar vertebrae which is the next one below, the
upper surface of which has been crushed a trifle.
There was a compression fracture due to the driving
together of these vertebrae. The vertebrae was
squeezed down so that the body thereof in looking at
it sideways is triangular in shape instead of being ap-
proximately square. The vertebrae was not driven
into the next one so as to become fastened to it. There
is cartilage between the bodies of the vertebrae and
they have been pressed togethr and the remnants ab-
sorbed by nature. In putting your hand on plaintiff's
back at the point of the injury the lump felt is really
the spinous process and not any foreign growth. It
is simply the spinous process rendered more promi-
nent by the bending of the spinal column. There is
nothing in the. picture to indicate that any pressure
exists. The sensation of tickling or other nervous
sensations are due to pressure, and the outline of the
spine without pressure would not produce any of
these symptoms. The photograph was taken on Feb-
ruary twelfth, 1912, at the request of the plaintiff to
enable the witness to testify on the trial.

On re-direct examination the witness testified as
follows:

''D. Is the injury you have described neat any
important nerve centers?

A. The spinal cord passes down through the holes
in the vertebrae, which I illustrated to the jury, and
this is right next to it. The bad vertebrae is right

vs. Christian Luck 39

here and your cord passes right down behind it, and
any change in position is Hable to cause pressure.

Q. Is that Hable to get worse as it goes on? To
affect the nerve centers?

A. Yes, as a rule when the callous is thrown out
in the first place, in Nature's endeavor to repair this
condition, then there is pressure more or less on this
spinal column or cord rather, and pressure on any
nerve if continued will produce a condition of inflam-
ation of the nerve or neuritis. Later on Nature ab-
sorbs more or less of this callous ; in the length of time
in this case, two years, there has been considerable
of that callous absorbed, if not all that is going to be
absorbed. A condition of neuritis when not treated,
and sometimes when treated, continues progressive,
and gets worse in time.

Q. Will you explain to us laymen what is meant
by neuritis, and just what it is?

A. Neuritis is simply inflammation of the nerves.

Q. How does it act — the effect on the patient?

A. Causes pain ; there is more or less pain, there
is pressure on the nerve. Nerves are like wire, with
covering or insulation, and the nerve derives its nour-
ishment from this covering; the blood vessels come
down through and it acts as a protection on the
nerve. When you put pressure on this nerve or nerve
covering, it shuts off the food supply of this nerve, and
that causes pain, causes the nerve to shrink and inter-
feres with its function.

Q. Ultimately what does it result in?

A. Ultimately if continued, the nerve might in

40 Otis Elevator Company

time — its function might be destroyed entirely or on-
ly partially.

Q. Produce paralysis in any respect, local or oth-
erwise?

A. Yes, produces paralysis.

Q. That you say is the result that may come from
the injury he suffers from still?

A. Yes sir.

On re-cross examination, the witness testified:

Q. Do you mean to say, Doctor, now, that Mr.
Luck is suffering from neuritis of any sort?

A. I have not examined him for rfeuritis, but
simply he has complained of pain and he may have
this neuritis condition due to pressure. I don't say
that he has, because I haven't examined him for that.

Dr. A. G. Bettman testified for plaintiff, as follows:

Is a physician and surgeon of five years' experi-
ence, graduating from the Medical Department of
the University of Oregon. Called in to treat the
plaintiff on February twenty-fourth, 1910, at which
time he was suffering pain in the back, and there was
tenderness over the back and over the muscles of the
back on either side of the spinal column. Has seen
him several times since.

On the first examination there was discoloration,
but no lump. Noticed the lump on the third examina-
tion about a year ago. Has examined the X-Ray
photograph.

"Q. What in your judgment, will be the effect of
that injury on him? On his general health and ability
to work during the rest of his life?

vs. Christian Luck 41

A. It will weaken his back and I don't see any —
how it can be improved any.

Q. You think it is permanent?

A. Yes sir.

O. Is it likely to become more aggravated?

A. Why yes, I should say it is very likely to.

Q. How will it affect any nerve centers, or nerves
of the body?

To which question counsel for defendant objected
as being immaterial, incompetent and irrelevant and
not pleaded in the complaint, which objection was
overruled, to which ruling defendant then and there
excepted, which exception was allowed, and said wit-
ness further testified as follows:

''A. Well, pressure would affect the cord. At
present there seems to be no pressure on the cord."

''Q. May that come in the future?

A. It may come later, yes. I should say that the
angulation of his back was greater than it was the
first time I saw him.

Q. What?

Is much greater than the first time I saw him

The angulation ?

Yes.

By that you mean being out —

A
A

Q

A

Q

A

Q

A

Q

Out of a straight line.

Out of a straight line?

Yes. :

More curved or bent?

Yes.

It is worse now than it was when you first saw

42 Otis Elevator Company

him?

A. Yes sir.

Q. That would indicate that the abnormal con-
dition is advancing or increasing?

A. Yes."

On cross-examination, the witness testified that he
saw the plaintiff on February 24th. and 26th., 1910,
at which times he was in bed. Did not see the plain-
tiff again until something like a year afterwards at
his office, where Luck called. Did not treat him at
that time, but plaintiff called to talk over his condition
Does not remember if this was after the suit was in-
stituted or whether the matter of the suit was discuss-
ed. Examined his back at that time. Did not con-
sider that there was anything much that could be
done at that time. Saw him several times between
that visit and February, 1912. Thinks something was
said at the next meeting of the suit. The only two
times when he undertook to prescribe as a physician
were on February 24th and 26th., 1910, at which
times there was no angulation.

Examined him the last time a few days before the
X-Ray photograph was taken. Is of the opinion that
there is no pressure on the spinal cord. There is no
treatment known in the profession that would re-
lieve the situation.

Christian Luck being re-called, further testified
that he went to work on this job the day after Thanks-
giving, the job having been started two or three days
before, and some of the timbers having been set up.
Had nothing to do with the selection or looking after

vs. Christian Lwck 43

the machinery used in carrying the dirt into, and the
bucket out of, the well. The hook used at the time of
the accident was the only one he ever saw there and
had been delivered there when he went there, already
connected up with the cable. Had nothing to do with
the selection of this hook or the machinery or cable
or bucket or any of the apparatus. That was done by
Shepard, the Superintendent. Was not foreman on
the job. Did not have his attention called to this par-
ticular hook or its liability to slip off. Had worked
for defendant off and on for four years constructing
electric elevators, in which work they did not dip:
wells and use this pocket and hook. Two plunger
elevators had been put in before this for the Y. W .
C. A. and the Y. M. C. A. buildings. Had worked on
the Y. M. C. A. job about two weeks. Did not see
how the hook happened to come off of the bucket.
When it fell was shoving the tools to one place so as
to have a place to dump the bucket. Is thirty years
old. At the time of the accident was earning 37v^c
an hour, or $3.50 a day, $21.00 a week, wnth overtime
in addition. Health in good condition before the a-* -
cident and was considered a strong able-bodied man.
Never suffered from any sickness nor subject to at-
tacks of sickness before and never had any trouble
with his back. Now has a pain in his back practically
all the time, being unable to work or any manual lalmr
where he has to stoop. His regular work required
liim to stoop and lift constantly. Unable to do thac
kind of work ^ince the accider-t. Had to w^ork in the
well just li-.e same as anybody else. Did everythmf^

44 Otis Elevator Company

that he was told to do and what he saw had to be
done, including digging. Had to be in the well that
dav in the discharp-e of his dutv.

On cross-examination, Christian Luck testified as
follows :

The accident happened about one o'clock. Resum-
ed work at 12:30. Had put the casing together and
the accident happened about one o'clock.

At this point plaintiff introduced the hook, identi-
fied by the witness, which was marked Plaintiff's Ex-
hibit "3".

The twelve foot section of the casing had been add-
ed on to the casing already installed and they were
ready to go ahead with filling up the well prepara-
tory to which he was about to send the tools up. The
bucket was lowered into the well for the purpose of
dumping the bucket full of dirt, then putting the
bottom in and then taking the tools out. There was
nothing in the bucket except the gravel. The sledge
hammer which he was using was a sixteen pound
hammer with a 22 inch handle. Knew the bucket was
filled with cement gravel because he saw it after the
accident when it had not yet been emptied. Told the
man up above to send the bucket down so the tools
could be sent up. The man on top of the casing then
called to the man above to send the bucket down.
Jack Elia, on top of the casing passed the word to
Raveua, who signalled to the man operating the hoist,
V. Bristow. Doesn't remember the exact words used,
but nothing was said about a sledge hammer. Work-
ed in the well as much as anybody, taking his turn the

vs. Christian Luck 45

same as anybody else. The bucket had a hinge on the
bottom so the bottom could be swung out and the
dirt released and there would be one man in the well
to do this. Sometimes he would do it, sometimes
someone else; it was arranged between them, chang-
ing in four hour shifts.

He started work on Thanksgiving, 1909, and work-
ed constantly on the same job imtil he was hurt, but
not on the same hole. Altogether there were seven
holes, and he was injured on the second one. The first
one had been finished, and the second one had been
dug and the casing installed and the well filled to a
point within thirty feet of the top. Worked on the
day shift. At that time there was only one shift and
only one hole being worked upon. Started on Thanks-
giving, and had worked approximately seven weeks
on the first hole. The same hook was used both for
taking up the earth and for afterwards putting \i
back in, but a different kind of bucket was used to haul
the earth out.

''Q. But the same hook to fasten the different
kinds of buckets to the cable would be used, both in
hauling it out and for lowering the buckets?

A. Yes sir.

'Q. Well, you had seen that hook there, I suppose,
had you not?

A. What is that?

O. You had seen the hook there?

A. Have seen the hook?

O. You had seen the hook, had you not?

A. Yes sir, the hook was used there all the time.

46 Otis Elevator Company

Q. Well, you had seen it used, I mean ?

A. Well, we had used it there right along, yes.

Q." You had used it yourself, had you not?

A. Well, I guess I had.

Q. Well, don't you know whether you had or not?

A. I have put it on the bucket the same as anyone
else.

Q. You have put it on the bucket?

A. Yes sir.

'Q. The same as anyone else working there?

A. Yes sir.

Q. And in the doing of that work, it would be
necessary to do that quite often, would it not?

A. Every bucket.

Q. Every bucket?

A. Yes sir.

Q. So that during the time you were working

there, you knew what kind of hook it was, did you
not?

A. I never knew what they called it.

Q. Never knew what they called it?

A. No sir, never seen a hook like that before.

Q. Did they have a hook like that on the Y. M. C.
A. building?

A. Yes, we used that.

Q. Used the same kind of a hook on the Y. M. C.
A. job?

A. The same hook.

'Q. The same hook ?

A. Yes.

Q. And you had worked on that job over there,

vs. Christian Luck 47

had you?

A. Yes sir, about ten days or two weeks, I think.

Q. And had used this same hook over there?

A. Yes sir.

The bail or handle of the bucket was 5-8 inches in
diameter, and the bail of the bucket would be fastened
onto the hook. Stated that the hook exhibited to him
differed from the hook in use at the time of the ac-
cident. Had worked for defendant four years as a me-
chanic. The mechanic has one helper over whom he
has control and supervision. Started in with a help-
er named Saling who was discharged by Shepard and
then he generally worked with Elia. He was the on-
ly mechnic on the job.

"Q. And you had but one helper?

A. I practically didn't have any helper.

Q. I thought you said Elia was your helper?

A. Well, I considered him as my helper.

Q. Well, you had Revau. Whose helper was he?

A. They got their orders from Shepard. I didn't
give them any.

Q. And you had Bristow.

A. He got his orders from Shepard.

'Q. Did you have no right whatever over these
men?

A. Shepard didn't come over and tell me anything
they should do. He would tell them what to do, and
if they didn't do as he told them, when he came back
he would fire them.

Q. Suppose it became necessary, in the progress
of the work that there should be some authoritv ex-

48 Otis Elevator Company

ercised, and Mr. Shepard was not there, who would
exercise it?

A. Mr. Shepard would be there alright. He was
there pretty frequently.

Q. Suppose he was not there? Did any such con-
tingency ever arise?

A. Well, if the pump or anything like that went
out of whack, I would fix it.

Q. Who would?

A. I would fix it. I was mechanic on the job. I
had a right to do that. That was my part of the
work.

Q. Was Mr. Shepard there at the time this acci-
dent happened?

A. No sir, but he was there I believe, about half
past eleven — something like that — eleven o'clock.

Q. As a matter of fact, Mr. Luck, weren't you at
that time general foreman on the job ?

A. No sir.

Q. And weren't you performing the work there
as general foreman?

A. No sir.

•Q. And Mr. Shepard was the superintendent who
had supervision and direction over all the different
jobs being performed by the Otis Eelevator Com-
pany?

A. Mr. Shepard, we call him superintendent and
foreman at the same time.

Q. Well, Mr. Shepard was the man, was he not,
who had charge or supervision over the construc-
tion work of all the jobs?

vs. Christian Luck 49

A. Mr. Shepard didn't tell me what the other men
should do.

Q. No. Didn't he tell you what work should be
done?

A. No, he would tell each man individually what
he wanted him to do.

Q. Who kept the time of the men?

A. I did.

Q. Who turned in the time?

A. I did. :

Q. To whom would you turn it in ?

A. Turned it in to Mr. Shepard.

Q. Who made requisitions for materials that were
needed on the job?

A. Well, I don't believe I ever made out any.

■Q. Never made any at all ?

A. I don't believe I have — unless we wanted some
coal oil or something like that — gasoline.

Q. As a matter of fact, didn't you make requisi-
tions on the shops for materials that were used on
this job?

A. We didn't use any material from the shop on
that job.

Q. How about the tools?

A

Q

A

Q

A

Q

A

They were mine.

How is that?

They were mine.

The tools were yours?

Yes sir.

How about appliances?

They were sent there.

50 Otis Elevator Corripany

Q. Did you never order any appliances of any sort
to be used on this job?

A. No sir.

*Q. Didn't you go down, or send down to the shop
for different things to be sent up to the work?

A. The only thing we ever used on the job was
gaskets, I believe.

Q. What do you mean by that?

A. Gaskets for the pumps — we used to blow them
out pretty regular.

Q. Now, Mr. Luck, didn't you on January 25, 1910
order for this job, a clamp that was to be used for
holding the well casing?

A. Used for holding the what?

O. The well casing.

A. No sir, I never seen one there.

Q. And didn't you on the 14th day of February,
order a spider for plumbing the well casing?

A. No sir, Mr. Shepard ordered that himself.

Q. And didn't you on the 18th day of February,
1910 order clamps for holding the steam and water
pipes in the well hole?

A. I believe that we did get some clamps there.
That pipe was getting some water on us one time.
I forget when it was.

Q. Weren't those made according to your special
directions?

A. No sir, they were already in stock, I believe.

(J. Weren't you foreman on the Y. M. C. A. job
in digging the well hole there?

A. No sir.

vs. Christian Luck 61

Q. I hand you a piece of paper, and ask you if
that is your signature underneath?

A. Yes sir.

Q. What is that?

A. This is a time sheet/'

Whereupon defendant offered in evidence the time
sheet identified by the witness and signd "C. N. Luck,
Foreman," which was marked Defendant's Exhibit
"A".

"Q. I will ask you if you ever read the directions
on the other side?

A. No sir, I never had time."

Witness was handed another time sheet, the signa-
ture to which he could not identify positively, which
was marked Defendant's Exhibit "B" for identifica-
tion.

The witness identified other time sheets bearing
his signature which were offered in evidence and
marked Defendant's Exhibit ''C".

''Q. Did you notice the word "foreman" there,
when you were signing these time tickets?

A. No sir, I didn't notice in particular until just
now.

Q. Never noticed that until today?

A. No sir."

Q. Did not make out tickets like that on the Y.
M. C. A. job. Mr. Shepard kept the time on that job-

"•Q. Did you ever hire or discharge any men ?

A. No sir.

Q. Never had anything to do with that ? -'

A. No sir.

52 Otis Elevator Company

Q. And you never selected any tools from the
shops?

A. No sir. They were sent there by Mr. Shepard's
directions. Whatever he wanted there was sent
there.

Q. Whenever a tool got broken, who replaced it?

A. Why, the Otis Elevator Company replaced it.

Q. Why — who would ask for it?

A. That is, if it was their tools.

O. Who would put an order in for it?

A. I wouldn't put no order in for any Otis Ele»
vator tools that were broke.

Q. You wouldn't?

A. No sir, I would put an order in for my own.
though that was broke.

'Q. Do you know what a Crosby clip is?

A. Yes sir.

Q. Did you use one on this job?

A. Yes sir, we used that to hoist the pump up and
down.

Q. Didn't use it when you were lowering this
bucket into the well?

A. No sir, we don't use any on there.

Q. Didn't Mr. Shepard, some time before this ac-
cident happened, tell you to use a Crosby clip when
you were lowering the bucket into the well?

A. No sir.

Q. Never told you any such thing?

A. No sir, you couldn't get no Crosby clip on
the hook.

Q. You couldn't? . _._^

vs. Christian Luck 53

A. No sir.

Q. How about the cable?

A. Well, that was on there all the time.

Q. You mean the cable was on all the time?

A. Yes sir; those Crosby clips never were taken

off.

Q. Well, couldn't you have used this cable on this
particular bucket, and fastened the cable to the buc-
ket by means of a Crosby clip?

A. No, sir. It wouldn't have been practicable.

Q. And if you had done that, the bucket couldn't
possibly have fallen oflf?

A. We would have had to take this clip off every
time we loaded the bucket.

Q. Every time what?

A. They loaded the bucket.

Q. Why?

A. Sometimes they would put the bucket on a
wheelbarrow, and put the bucket on the dump and
fill it, and then put the bucket on and hoist it, and
lower it down to the well.

Q. And couldn't you have taken a piece of wire
and wired the bail of the bucket to the hook?

A. Well, that was not practicable.

Q. You couldn't have done that either?

A. I simply say it aint practicable.

Q. Well, as a matter of fact, you considered the
hook you were using as perfectly safe, didn't you?

A. Yes sir, I thought it was all right.

Q. You used it for several months there, did you
not?

64 Otis Elevator Company

A. Yes sir.

Q. Used the same hook over on the Y. M. C. A.
building?

A. Yes sir.

Q. And you used the same hook on the Olds,
Wortman & King building?

A. Yes sir.

Q. Not only to haul buckets of earth out of the
well, but also to lower them into the well?

A. Yes sir.

Q. And you had worked there continually during
all that time, and saw the hook, and saw how it be-
haved, and you considered it safe and proper, did
you not?

A. Well, I couldn't see how it behaved.

Q. Well, the bucket didn't fall on you did it?

A. Well, that don't say how it behaved.

Q. Well, if you had considered it an unsafe ap-
pliance, you would have remonstrated about it,
wouldn't you?

A. You will have to read that over again.

'Q. If you had considered it an unsafe hook, you
would have kicked about it, wouldn't you?

A. I think I would.

Q. You had a right to do that, didn't you?

A. Yes sir.

Q. Did you ever complain about that to Mr. Shep-
ard?

A. No sir.

Q. Or to anybody else?

A. Not that I know of.

vs. Christian Luck 55

O. And you knew that if this prong wasn't high
enough, if the bucket should happen to strike the cas-
ing or some other obstructions, the bail might slip
out, might it not?

A. I guess it might. That is what it done this
time.

Q. Sure, and you knew that, didn't you?

A. Never stopped to consider that.

Q. You don't have to be a mechanic to know that,
do you?

A. Got to be better than a mechanic to decide
that.

Q. How?

A. You would have to be better than a mechanic
to.

'Q. Wouldn't anybody, Mr. Luck, know that if
this hook was of the character described by you, that
the slightest knock on the bottom of the bucket so
as to release — so as to put any slack there, would
cause the bail of the bucket to slip out of that hook?

A. Well, I look at it this wa}^: Mr. Shepard had
that hook made, and that was the hook that was go-
ing to be used there, and I thought he knew every-
thing about it — that the hook was safe.

Q. But you also knew enough about it to know
the character of work that was being done there,
didn't you?

A. I knew the character of work that was being-
done.

Q. And you knew the likelihood of the bucket
striking against the side of the well, or against the

66 Otis Elevator Company

bail, didn't you?

A. Well, some times it does it.

Q. That wasn't an unusual occurrence was it, Mr.
Luck?

A. Oh, no, it would scratch. Sometimes you would
have some trouble with it striking some places, owing
to how close that casing comes out to the center of the
hole. Sometimes there wouldn't be hardly room
enough to get the bucket through.

Q. And the bail of the bucket was about five-
eighths inches in diameter, wasn't it?

A. About, yes.

Q. And it was of iron or steel, wasn't it?

A. It was of iron.

Q. Of iron. So that there would be no give to it,
would there?

A. The only time there would be any give to it
would be when it would strike something.

Q. When it would strike something, there might
be some play in it.

A. Yes sir, the load in it was liable to draw the
sides together — a heavy load like that.

O. And in doing that, the blow might be enough
to jump out of this hook?

A. No sir, I don't think so.

O. Well, it must have been, because as you say, it
did it on this occasion?

A. Well, it hit then."

Went back to work about two weeks after the ac-
cident, and worked until the job was finished, which
was four months anyway, maybe a little more than

vs. Christian Luck 57

that. Was appointed foreman when he went back to
work after the injury. Received $3.50 per day before
the accident happened, and a Httle while after the
accident his wages were raised to $4.00. After the
accident signed the same kind of time tickets as be-
fore. After the accident three shifts were run, and
he was in charge of all three, but at the time of the
accident Mr. Shepard was the ''head squeeze", and
he was only a workingman. When the Olds, Wort-
man & King job was finished went with a helper to a
job on Union Avenue and Davis Street. Requested
help from Mr. Shepard because one man could not
do all the lifting. Shepard said, "Why, what's the
matter?" I said, ''I can't do nothing." He said,
''What the Hell they got you round here for?" Next
day Shepard sent two more men to help me. When
the job was finished Shepard told him to lay off a
while until he regained his strength because the Com-
pany couldn't make any money on him that way.

Since then he was superintendent for Advance
Construction Company. Started to work for them
about a year after leaving the defendant. In the
mean time worked for three weeks for Portland
Elevator Company at $4.00 a day. After that worked
for McGinnis and Reed, as Superintendent of Build-
ing Construction v/ork and received $35.00 a week.
Worked for them for four months.

After an interval of about six months went to
work for the Advance Construction Company and
worked for them about four months, practically up
to the present time as Superintendent of their build-

58 Otis Elevator Company

ing construction work, at $30.00 per week. Built the
East Side Librar}- and arranged for concrete building
on 21st Street.

The bucket had never fallen off before that he
knew of at that time, hut has heard since that it
had.

"Q. Now, in your direct examination, you said
that you never had your attention called to this hook.
As a matter of fact you had seen it there every day,
had you not?

A. Using it there every day.

Q. Both fastening the bucket to it, and unfasten-
ing the bucket from it?

A. Well, it was not that we took the cable off. We
never took the cable off the hook, it was just taking
the hook off the bucket — that was all.

Q. The hook at all times was fastened to the ca-
ble?

A. Yes sir, that is fastened on there with Crosby
clips.

Q. But in doing the work, it would be necessary
very frequently for the bucket to be taken off the
hook?

A. Yes sir, it was taken off practically every load.

'Q. And sometimes you would take it off, and
sometimes someone else would take it off?

A. Yes sir.

Q. Sometimes you were down in the hole, and at
other time somebody else?

A. Yes sir.

Q. And during all of the time that you had used

vs. Christian Luck 59

this hook, you never made any complaint about its
being unsuitable?

A. No sir.

Q. And as a matter of fact, you didn' tthink that
it was unsuitable?

A. I didn't catch that question there.

Q. I say you really didn't think it was unsuit-
able, because you never made any kick about it.

A. Well, I thought it was all right.

Q. And the hook was perfectly in plain sight so
you could have seen it while it was being used there?

A. Plain sight there all the time.

Q. And as a matter of fact you did see it?

A. Couldn't help but see it.

Q. And you knew that if the bucket would strike
against something, so as to be jarred loose from the
hook, it might fall down into the hole?

A. That never crossed my mind.

Q. Well, you probably didn't think of that specific
thing, but then you understood that, didn't you?

A. Well, I didn't think it would come off of there.

Q. But you knew that if it did come off, the buck-
et necessarily would fall?

A. That's a fact.

Mr. FULTON: Yes, most of us would know that.

Q. And you understood also that if the bucket
fell while you were down in the well there, and it
struck you, you might be injured?

A. Yes sir, found that out by experience.

Q. Well, you knew that beforehand too, didn't
you?

60 Otis Elevator Company

A. A question like that never crossed my mind."

On re-direct examination, Christian Luck testified
that the other men working with him were getting
$3.50 and $2.80. All the huskies, that is, the ones
that did the most work, got $3.50. Didn't know what
his helper received as he did not set a price on wages.
Had nothing to do with the hiring and discharging
of the man. Commenced to keep time about two
weeks after starting on the job at Shepard's request.

On re-cross examination, he testified that he
thought two-thirds of the men got $3.50, except the
hoist boy who received $1.25 or $1.50.

On re-direct examination he testified that the ex-
tent of the work done by him since the injury was
between five and six months, altogether. Is not em-
ployed now and has not been since December first last
year, because it is pretty hard for one to get a job who
isn't able to work. On the superintending jobs he
had practically nothing to do but to walk around with
his hands in his pockets, overlooking the work. The
work on the Pacific Hardware and Steel building was
too hard for him. It affected his back and he had
backache all the time.

On re-cross examination, he testified that on the
Pacific Hardware and Steel job he worked from 2^ to
3 months, possibly only two, but not until the build-
ing was finished.

JACK ELIA being called as a witness, for the
plaintiff, testified as follows:

Was employed by Otis Elevator Company on Feb-
ruary 24, 1910, as a digger. Rcmcml)crs the accident

vs. Christian Luck 61

to Luck. At that time was in the well standing with
one foot on the ladder and the other foot on the cas-
ing. The ladder was used to go up and down the
well. The casing was about 15 feet above the sur-
face of the fill. Luck was at the bottom of the hole.

''As I was standing there, why, there was a load of
dirt come down, and that cable coming down, it was
at this distance, 85 feet or 86 feet; when it come to
the bottom of the hole, it had a tendency to twist the
cable just twists as it goes down with the bucket. It is
just a nautral turn all the way down until it reached
the bottom of the hole. By the time it gets to the
bottom it had an awful big twist in that cable. As
near as I could make while I was standing there, the
bucket happened to hit the casing. As near as I
could feel; my thoughts was just as soon as that hit
the casing, it released the weight of that bucket and
the cable untwisted and turned the hook out and the
bucket came down. That is as near as I can make.

Q. The bucket

A

Q
A

•Q

A

Q

A
had

Q

A

Separated from the hook.

— separated from the hook, and fell, of course?
Fell on top of Mr. Luck.
Did you see it strike him?
I did."

What was the effect of the blow?
Why, I thought, to my knowledge, that if it
been any ordinary man, it would have killed him.
Just what did it do, — knock him down ?
Knocked him right down, doubled him up just

in a pile.

62 Otis Elevator Company

Q. Did it go on top of him?

A. Yes, went right on top, just doubled him up in
a pile — just doubled him right up in a pile.

Q. What did you do, if anything?

A. Why, for a minute I didn't know what to do —
for a second, I didn't know what to do and the next
second I started down the hole and takes the bucket
off of him. Well, he says — well, on my way he says :
''Hurry up", he says, "take the bucket off." And I
got down there and took it off, and by that time it
didn't seem like he knowed much any more, so I hol-
lered up to send down some water right away, and
they sent down some water, and I began to bathe his
head. I bathed him all over, and tried to give him a
drink, and he would swallow, and was bleeding from
the mouth, as near as I can remember. Seemed like
he was going — about gone, and I told him to take — I
will send him up in a bucket. So we hooked the buck-
et up, put him in the bottom, and hauled him up on
top.

Examined Plaintiff's Exhibit ''3", which, if bent a
little straighter out, would look more like the hook.

Mr. Shepard was superintending the work and dis-
charged him. Shepard hired and fired.

''When I was digging down in the hole I thought
I was in charge."

On cross-examination, Jack Elia testified that Luck
was down in the hole and he was at a point about
level with the top of the casing which was approxi-
mately 13 feet above the surface of the fill. There
were two sizes of casing, one 15 or 15^> and the other

vs. Christian Luck 63

\6y2. The hole was 3 feet square or 3 feet 6. Doesn't
remember what he was doing at the time of the acci-
dent, but had one foot on the casing when the bucket
struck the casing.

Doesn't remember if he was looking at Luck or not.
The cable had a twist acquired in going down the 86
feet. There was a pully right over the hole but doesn't
remember if it was stationery or on a swinging boom.
Doesn't remember if he noticed the bucket as it came
down the hole. Doesn't remember where the dirt
came from which had been loaded into this bucket.
Sometimes the dirt was taken from in front of the
hole and sometimes 30 or 40 feet away, in which event,
the bucket would be loaded onto a wheel barrow and
after being filled and wheeled back, the hook would
be fastened into it and then lowered down into the
hole. Doesn't remember if the bucket on this occa-
sion was revolving or twisting as it came down or
whether it came down straight. Did not see the buck-
et twist, and did not see it strike the casing or the side
or wall of the well. Heard a noise which sounded
like the striking of the casing. The first he saw of
the bucket was after it had fallen on Luck. It did not
then have a sledge hammer in it. The hook was made
out of an iron bolt ^ inch in diameter. The hook re-
sembled plaintiff's Exhibit ''3" except that it was 1
inch thick and was straightened out more. Doesn't
remember when he started to work on the job. Luck
was working there when he started. V/as digging
practically all the time. First received $2.80 a day
and then $3.50. The hook was used during the whole

64 Otis Elevator Company

of the time he worked there, both in lifting the buck-
et out of the hole and in lowering the bucket into the
hole, and was used constantly during the time he was
there up to the date of the accident. Luck was an all-
round man on the job, doing a little of everything.
Didn't know who was keeping the time. Was helper
to Luck who was a mechanic. At times he would
comply with Luck's directions, at others Luck would
do his directions, such as sending him down tools or
other things upon his rec[uest. At the time of the ac-
cident there was but one shift. Sometimes he would
rig up the apparatus, sometimes Luck would. Shep-
ard used to come round and give a good many orders.

''Q. What did Mr. Luck do with reference to
these other men about giving orders and directions
to these other men?

A. Why he — they would give the same orders that
I would give. Most of them gave the same orders
that I would give them when they were working in the
hole — give the same thing. I would have to obey their
orders just the same as they obeyed mine, at the top
of the hole.

Q. By what do you mean signals for the opera-
tion of the hoist?

A. What is that?

Q. Do you mean about giving signals in regard to
the operation of the hoist?

A. No, anything that you want from the bottom
of the hole — anything that you want, you had the
right to give orders up there for them to do as you
wanted them to do."

vs. Christian Luck 65

He did not put in orders to the shop for appliances.
Doesn't know if Raveau or Bristow or Luck did that.
Was discharged by Shepard.

On re-direct examination, he testified that he was
helping fill the well, with plaintiff. He and the plain-
tiff both dug together alongside of each other, and
worked in filling the well in the same way. The buck-
et was filled to the top with cement gravel and weigh-
ed in the neighborhood of 500 pounds. The hook was
not broken, simply twisted out. Gads were used in
digging the cement gravel and Shepard and Mr.
Green used to come and ask how many gads to be
sent up, and they used to send gads from the shop as
they were needed.

The hook did not become loose from the cable but
came loose from the bucket.

"Q. Did the bail or handle of the bucket break?

A. No, it just came out through from the eye of
the bucket."

GEORGE HYDE, being called as a witness, for
the plaintiff, testified as follows:

Was employed by Otis Elevator Company on Olds,
Wortman and King job, commencing about January
1, 1910, and working until after the holes were
through. At the time Luck was injured was working
on the night shift. Had the hook used at the time of
the accident made himself in October or November,
1908, for work on the Y. W. C. A. building. On that
job it v\^as different. The way he had it made it was
a perfectly safe hook, known as a "pig tail hook." The
hook had been spread. Shepard told him it had been

66 Otis Elevator Company

sent to the shop where it was spread because it was
too hard to unhook. The bucket had to be unhooked
every trip up and down. By spreading it it had a
tendency if anything struck the bucket to rise up and
jdrop off. A day or two after he had been to work
there, some time in January, 1910, he told Shepard
that the way the hook was spread it wasn't safe, that
he didn't Hke to work under it and Shepard gave him
to understand that he could either work under it or
quit, and he stayed there and worked on the job
just the same. The hook continued in the condition
in which it was when he called Shepard's attention to
it until after Luck was hurt.

On cross-examination he testified that he was
working on the night shift, working on the same hole.
Sometimes he was on the night shift and sometimes
on the day shift. Luck sometimes worked on the night
shift, before the accident. When Luck was on the
night shift, part of the time he worked with him. At
the time of the accident there was only one hole sink-
ing, but the night shift used the same hook as the day
shift. From the first of January, 1910, until the time
of the accident, the same hook was used, and it was in
the same condition during all of that time.

''O. You had a contract, did you not, for the Y.
W. C. A. job?

A. I did, yes.

Q. And gave it up and then went to work for the
company?

A. Well, I was forced out of it, yes.

Q. The Company took up your contract, did they
not?

vs. Christian Luck 67

A. Well, they — they crowded me out.

Q. Well, they took up the contract?

A. Yes sir.

Q. And then you went to work for them on the
Olds, Wortman & King job?

A. Yes sir.

Did not work for Otis Elevator Company from Oc-
tober or November, 1908, until January, 1910, during
which time he had nothing to do with the cables or
hooks or other appliances in use by the defendant.
His conversation with Shepard took place when they
were finishing the first elevator shaft.

''Q. Who were present when this conversation
took place?

A. Well, I couldn't say as to that. There was a
number around there, but Mr. Shepard and I were
talking together at the time. I don't know.

Q. Do you remember any of the people who were
present at that time?

A. Oh, there was — I think Revau was there, and
Val Bristow, Chris Luck.

Q. Mr. Luck was there?

A. He was in the building, but I don't know as he
was right in the immediate vicinity at that time —
couldn't say how far he was — whether he was in the
hole or where he was.

Q. What time of day was this conversation ?

A. Well, as near as I can remember, it was in the
forenoon some time.

Q. It was when?

A. In the forenoon, I think.

68 Otis Elevator Company

Q. You were working on the day shift then ?

A. Yes sir, I worked part of the time on the day
shift, and part of the time on night.

Q. You worked with Mr. Luck then, on the day
shift?

A. Yes sir.

O. And you saw him using this hook, did you?

A. Why, I guess I did. He was using it part of
the time, and I surely would see it, although I couldn't
say that I can call any action where I seen him handl-
ing it.

Q. But he was in the crew that was using the
bucket?

A. He was in the crew, and he undoubtedly used
it, of course.

Q. And you think that Mr. Revau and Mr. Bris-
tow and Mr. Luck were present when you had this
talk?

Mr. FULTON: He didn't say that. I beg your
pardon. He said they were there in the vicinity, or
something like that. He didn't say they were pres-
ent.

A. They were working in the building. I don't
remember —

Q. I asked who were present — that is what I want
to know.

A. If you mean who was talking, nobody talking
but Mr. Shepard and L

'Q. Nobody talking with Mr. Shepard?

A. T was talking with Mr. Shepard alone.

Q. Who was listening to the conversation?

vs. Christian Luck 69

A. I don't know — there was 300 or 400 men work-
ing in the building. I couldn't tell who was listening
to it.

Q. Who was sufficiently close to hear the con-
versation?

A. I don't know that, because I wasn't paying no
attention. I never thought anything about it until
here lately, I got to studying it over. Most of it had
left me entirely, because I had paid no attention to
it, didn't concern me in no way, that I could see.

Q. You used the hook on the work there as it was,
did you not?

A. Yes sir.

Q. And notwithstanding that you thought it was
unsafe to use it, did you not?

A. I surely did, yes. The hook had to be used —
unhooked every time the bucket was sent down.

Q. How?

A. The hook had to be unhooked every time the
bucket was sent down. That was why it was spread
so could handle it easily. The empty bucket was sent
down, and a full bucket of earth sent out.

•Q. Did you work down in the well?

A. I worked there pretty near all the time was
digging, yes sir. One shift or the other.

Q. And during the time they were filling up?

A. I worked in the bottom, yes, while filling up,
dumping the bucket,

Q. And this conversation that you spoke of, took
place wery shortly after you went to work there on
the first of January, 1910.

70 Otis Elevator Company

A. Yes sir.

Q. And the hook stayed in the same condition
during that time to the day of the accident?

A. Yes sir, I wasn't digging at the time we had
the conversation. I was wheeHng the dirt to the
hole."'

Luck worked on the Olds, Wortman and King job
within a week or such a matter after the accident.
Doesn't remember that he said anything to Luck, or
about Luck saying anything to him about the hook or
its connection. Luck never complained to him that
it was unsuitable for the work. Even after spreading,
a person who knew nothing about the hook, would
consider it a safe hook.

H. A. TAYLOR, being called as a witness on be-
half of plaintiff, testified as follows:
Questions by Mr. FULTON :

"Q. Mr. Taylor, where do you live?

A. Portland, 1275 East Sixth Street, North.

Q. Did you ever work for the defendant, the Otis
Elevator Company?

A. Ys sir.

•0. When ?

A. 1908. I don't remember the month; November
or October.

Q. In what work were you engaged at that time ?

A. Rigging elevator shaft ; what they term the
well.

Q. Where?

A. Y. W. C. A. building.

Q. Y. W. C. A. Building?

vs. Christian Luck 71

A. Y. W. C. A. Building.

Q. The Young Women's Christian Association?

A. Yes sir.

Q. Were you working there first when Mr. Hyde
was on the job or were you there at any time when he
was on the job ?

A. Yes sir.

Q. Were you there after he left the job and when
the Otis Elevator Company took it over?

A. Yes.

'Q. Did you continue to work for the Otis Elevator
Company?

A. Yes sir.

Q. Now, after that— after Mr. Hyde had left, the
Otis Elevator Company took the work over; what
were you doing for it?

A. I was digging the shaft.

Q. Digging in the shaft. Did you at that time no-
tice how the bucket was connected with the cable —
the bucket which carried the dirt?

A. Yes, sir, the bucket was connected with what
is termed a pigtail hook.

COURT: What kind— pigtail?

A. Pigtail hook, yes sir.

Q. Was it similar to that?

A. Yes, just about the kind of a hook.

Q. Now, while you were working there in the
well, state whether or not any accident occurred, and
if so, what?

To which question counsel for defendant objected
as being incompetent, immaterial and irrevelant.

72 Otis Elevator Company

"COURT: Well, I suppose if it occurred through
the use of this hook, it would be competent to show
that the company knew it was an imperfect hook.

Mr. FULTON: I propose to show that practically
the same accident occurred there, and that it was
communicated to Mr. Shepard, the superintendent of
the company."

Whereupon, the Court overruled defendant's ob-
jection to which ruling defendant then and there ex-
cepted, which exception was allowed, and the witness
further testified:

"A. A bucket fell 53 feet there.

Q. What say?

A. I was working in the bottom of the shaft, about
53 feet from the top of the basement of the Y. W. C.
A. Building, and a bucket came down on me.

Q. Well, how did it come down ? How did it hap-
pen to come down — slip off the hook?

A. It slipped off the hook.

O. As it was descending into the well ?

A. Yes sir.

Q. What did it do to you?

Mr. LEITER: I object to that as incompetent.

COURT: The only question is whether it slipped
off the hook.

Mr. FULTON: I don't insist on that if objected
to.

COURT: The extent of this man's injury has no
bearing on this case; it is only competent for the pur-
pose of showing that the company, or tending to show
that the company knew it was an improper hook.

vs. Christian Luck 73

Q. Do you know whether Mr. Shepard knew that
the bucket came off at that time when you were in
the well?

A. No sir, I do not.

Q. What say?

A. I do not.

Q. Did you have any talk with him about it?

A. No sir. I had a talk with the man that was
working on top of the shaft, taking care of the bucket
— unhooking and hooking the hook in the bail.

Q. What say?

A. I had a talk with the man that was hooking and
unhooking the hook from the bucket, in order to
dump the bucket ; he had to unhook the hook.

Q. Never mind what he said. I understand you
had a talk also with Mr. Shepard about the injury
you received at that time. Did you have any talk with
him about the injury you received at that time?

A. The injury that I received at that time —

Mr. LETTER: I object, may it please the Court,
as incompetent, immaterial and irrelevant.

Mr. FULTON: I think it would tend— it is not
competent for the purpose of showing injury.

COURT: No, but for the purpose of bringing
knowledge home to the company of the accident.

A. I told Mr. Shepard at the time that I wanted
to be sure the man understood how to hook the hook
in there. I didn't like to go in the shaft and put my
life in danger at the bottom of that shaft with a man
who didn't know anything about the hook.

'Q. Was that after the bucket came off?

74 Otis Elevator Company

A. No sir; before the bucket came off.

Q. I mean after the bucket came off ?

A. No sir, not that I remember.

Q. I was mistaken, I thought you had. That is all.

Whereupon, counsel for defendant moved that all
of the testimony of said witness H. A. Taylor in re-
gard to the falling of the bucket be stricken out, be-
cause Counsel for plaintiff had failed to show that de-
fendant had any knowledge of the occurrence, —
which motion was overruled, to which ruling defend-
ant then and there excepted, which exception was al-
lowed.

MRS. LIZZIE LUCK, called as a witness for
plaintiff, testified that she is the wife of the plaintiff;
that Mr. Luck's health was excellent before he was
hurt ; that he was always well, never complained and
was a strong man. That since the accident he has not
been in good condition, has complained constantly
of his back and at times when he would do any kind of
w^ork at all, no matter how light, a red spot would ap-
pear in the center of his back. She noticed it con-
stantly after he had done anything. Mr. Luck had
to depend on his labor lor a living.

Whereupon, plaintiff rested his case.

R. W. GREENE, called as a witness for defendant,
testified as follows:

Is a salesman for Otis Elevator Company, employ-
ed by them as cashier and accountant in February,
1910, having charge of making up the pay rolls, pay
ing the men and looking after the various accounts of
the Company in Portland. Kept the time of the plain-

vs. Christian Luck 75

tiff, whose wages during February, 1910, were $4.00
a day, payable weekly. Eight hours was a day's
work but sometimes Luck worked more than eight
hours, or overtime. Time sheets were made out by
Mr. Luck showing the time for himself and the men
under him, which were turned in to the witness who
would make out the payroll.

After refreshing his memory from a press copy of
the weekly pay roll, the witness testified that during
the month of February, 1910, prior to the accident,
plaintiff was receiving $4.00 a day, or oOc an hour.
Slip dated February 22, 1910, being part of defend
ant's Exhibit "C", showed the time entered by the
foreman, who was Mr. Luck.

On cross-examination, the witness testified that he
knew Luck was foreman because he looked to him
for the time slips and he kept the time of all those
men ; that of the named shown by the weekly pay-
rolls, A Strain, a machinist, received 62^^ cents an
hour; Stemall, a machanic, 56^ cents an hour; W. O.
Ash, repairman and foreman construction, 5634
cents an hour; J. H. Gill, mechanic, 56^ cents an
hour; J. D. McDonald, a mechanic, 56^4 ecnts an
hour; J. Buckley, a mechanic, 56^ cents an hour; O.
F. Patrick, inspector, foreman and elevator construct
or, 50 cents an hour; William Boyer, a mechanic, 50
cents an hour; Gus Larsen, a mechanic, 50 cents an
hour; H. H. Gallagher, a mechanic, 50 cents an hour;
D. H. Moore, a mechanic, 50 cents an hour.

Is still in the employ of the company as salesman.
Patrick was formerly a constructor before he become

76 Otis Elevator Company

a repair man. These wages were in effect when wit-
ness was employed by the Company on September
22, 1909.

On re-direct examination the witness testified as
follows :

Doesn't think that any of the names above referred
to by counsel for plaintiff were men working on the
Trustee Building at the time Luck was hurt, but
couldn't be sure about it. Of the names found on
time ticket used February 22, 1910, being a part of
Defendant's Exhibit ''0\ J. Elia was receiving 35
cents an hour; P. Revau, 43 3-4 cents an hour; A. Ek-
blom, 35 cents an hour; F. H. Goodson, 35 cents an
hour; W. C. Worthington, 35 cents an hour; D. Ab-
bott, 43 3-4 cents an hour; V. Elia, 35 cents an hour;
H. F. Holt, 43 3-4 cents an hour; H. Hoefer, 35 cents
an hour; G. A. Hyde, 35 cents an hour; V. Bristow,
30 cents an hour.

After the accident, during the months of April and
May, 1910, plaintiff was paid the same wages as be-
fore the accident, namely 50 cents an hour or $4.00 a
day.

PAUL REVAU, called on behalf of defendant,
testified as follows:

Is working now for Hurly Mason as Labor Fore-
man. Worked on the Trustee Building for defend-
ant at the time Luck was injured and had worked
there probably a month before the accident. Worked
down in the shaft digging, wages $3.50.

"Q. I say, state whether or not you were acquaint-
ed with the hook that was used on that job there.

vs. Christian Luck 77

A. Well, I wasn't acquainted with the hook at
all, as far as whether the hook was dangerous or not,
anything like that.

Q. You had seen the hook?

A. Yes.

O. Did vou ever hook it and unhook it from the
bail?

A. Yes.

Q. So that you do know what the hook was, and
what it looked like?

A. Yes sir.

O. And it was the same hook that was used there
during the entire time of this work that was being
done on this Trustee Building?

A. Up to the accident.

Q. And state whether or not Mr. Liick had used
this hook doing the work that was being done there?

A. Well, that hook was used until the time of the
accident.

Q. Who was your foreman up around' there on
that work, when you were there?

A. Well, I would get some orders from Chris, and
I would get some from Mr. Shepard.

Q. Was Mr. Shepard there all the time?

A. Well, I couldn't say, I was down below most of
the time.

Q. Who is Chris? Who do you mean when you
refer to Chris?

A. Mr. Luck.

'Q. Yes, sir, you say you took orders from Mr.
Luck—?

78 Otis Elevator Company

A. At times, yes.

O. And sometimes you took orders from Air.
Shepard?

A. Yes.

Q. Was Air. Shepard there on the job all the time?

A. Not all times. I wasn't up on top.

Q. Well, did you say Air. Shepard was there pret
ty much ot the lime, as a matter of fact?

A. Xo. not \ cry UjUrli.

Q. Xot very much. When Air. Shepard was not
there, who did you look to for your orders and in-
structions?

A. Well, in fact I would go down in the shaft in
the morning, and I wouldn't need any orders at all. I
would be down below all day.

Q. But you did say you got orders from Air. Luck
during the time you were working there?

A. Yes, some orders.

O
A

•Q

A

Did you ever give Air. Luck any orders?

No.

Did you ever give anyone any orders?

I didn't unless I would want somethink above

— I would holler up and get it.

Q. You would holler up?

A. Yes.

Q. If you wanted something?

A. Yes.

Q. But, as the work progressed, you didn't at-
tempt to give any one any orders or instructions as
to how the work should be done, did you?

A. No.

vs. Christian Luck 79

Q. In the absence then of Mr. Shepard, you look-
ed to whom? You looked to whom for your orders,
or to whom did you look for orders ?

A. Most any one that would give them to me.

Q. Beg pardon?

A. Most anybody that would give them to me.

•Q. Would you have taken orders from me if I had
been up there?

A. It all depends.

Q. Was there no one on the job to whom you
looked as the foreman there?

A. Yes sir.

Q. Well, who was it?

A. Mr. Shepard and Chris.

Q. Mr. Shepard and Chris?

A. Mr. Luck."

Witness stated that a hook handed to him resembl-
ed the hook in use at the time of the accident, except
that the hook used was not so long and did not extend
down so straight.

This hook was introduced and marked Defendant's
Exhibit "D".

At the time of the accident he was over the shaft
filling the bucket. After the bucket left him and went
down a little ways he could not see it any more. He
was sending the bucket down for the purpose of filling
the hole. Several buckets had been sent down before
the accident. Luck and Elia were at the bottom of
the shaft and several buckets had been sent down by
him. As the empty bucket came up he would pull
it to one side, fill it and send it back again. In filling

80 Otis Elevator Covipany

the shaft they yould pull the bucket to one side, fill
it and let it go down without detaching the hook.
The bucket would be raised by the hoist and swung
right over into the hole. The hook in use at the time
of the accident had been used during the entire time
that the bucket was being lowered with gravel and
dirt.

On cross-examination the witness testified as fol-
lows :

Did different kinds of work. In a way Shepard
was the boss or head man. Was hired by Shepard
and not by Luck. Couldn't say as to Luck having
power to discharge him. Shepard told him his wages
would be 2)S cents on top and $3.50 below. The hook
in use was shorter than defendant's Ekhibit "D".
Couldn't describe the hook very well, but defendant's
Exhibit ''D" is something similar to it. Worked on
the job until it was finished. Couldn't say what be-
came of the old hook. They stopped using it right af-
ter the accident and put on a different hook, some-
thing similar to a cork screw, having more twists in it.
Never saw the other hook again. Ltick was in bad
condition when they took him out of the hole. Doesn't
remember who took the hook off the cable, to which it
was fastened by means of a clamp. It was securely
fastened to the cable and could not easily be discon-
nected, except by a wrench. Another hook was put
on. Doesn't know what became of the old hook. As
it went down at the time of the accident the bucket
was loaded with gravel and dirt mixed. No tools in
it that he can remember.

vs. Christian Luck 81

On re-direct examination the witness testified that
he didn't know if Luck ever hired or discharged any
men on that job. So far as he knew Luck did not
hire or discharge any men. There were men com-
ing and going continually, but he didn't know who
hired or discharged them. While Shepard was absent
looked to Luck as foreman on the job.

On re-cross examination the witness testified as
follows :

"Q. So you would all look to him if you wanted
any directions or anything. He was the oldest em-
ployee there and you sort of looked to him to lead.
That was about it, wasn't it?

A. Yes sir.

Q. You say you never knew him to hire or dis-
charge anybody?

A. Mr. Luck?

Q, Yes.

A. No.

Q. You never heard of him doing so did you?

A. No.

JOHN J. ERICKSON called as a witness for de-
fendant, testified as follows:

Is Superintendent of repairs for the defendant,
with headquarters at the shop at 88 First Street ; has
worked for defendant four years. Was with them in
January and February, 1910, and at the time Luck
was working on the Trustee Building. Was his duty
to look after the work around the shop, getting ma-
terial in and out of the shop. Also had charge of the
storeroom.

82 Otis Elevator Company

"Q. State whether or not Mr. Luck had free ac-
cess to the tool room or storeroom of the Otis Ele-
vator Company.

A. He did.

Q. And did he ever exercise his right of having ac-
cess to that storeroom.

A. Yes.

Q. State whether or not Mr. Lnck ever came there
and took therefrom tools and instruments and ap-
pliances for use on the work that he was doing.

A. On several occasions he came and got gads.

Mr. FULTON : I can't hear you.

A. On several occasions he got gads there for
digging the hole with. Other times he came there
and ordered material made that he wanted from
time to time.

Q. Did Mr. Luck ever come there and order ma-
terial or other supplies or appliances prior to Feb-
ruary 23, 1910, and while he was engaged on the
Trustee Building job?

A. Yes sir.

■Q. State what, if you know, Mr. Luck got at any
time from the storeroom prior to February 23, 1910.

A. He had a casing clamp made.

Mr. FULTON: What?

A. A casing clamp.

Mr. FULTON : A casing clamp ?

A. Yes, and he had a spider made for plumbing
the casing.

Q. What was that last, ]\Ir. Erickson?

A. A spider.

vs. Christian Luck 83

Mr. FULTON: A spicier made for plumbing the
casing as I understand.

Q. Anything else that you remember?

A. Somehting else but I don't remember now just
what it was.

Q. Just explain to the jury what you mean by a
casing clamp.

A. A casing clamp is a clamp made to clamp the
casing when it is lowered into the hole.

Q. Was that in stock at the storeroom?

A. No, it had to be made in the shop.

Q. And under whose orders and directions, if any,
was that clamp made?

A. Mr. Luck ordered it, and I placed the order
in the shop for it.

O. Did Mr. Luck tell you what sort of a clamp he
wanted?

A. Yes sir, he made out a sketch of it at that time.

*Q. Made you a sketch of it?

A. Yes.

Q. Explain to the jury what is meant by a spid-
er?

A. A spider is a contrivance that hangs on a line
into the hole — into the casing, and it has several
prongs on it; is supposed to hang plumb so they can
plumb this casing and get it straight up and down.

Q. A spider then is used sort of as a plumb?

A. Yes, as a plumb.

Q. And at wdiose direction was this spider fur-
nished? On whose order was this spider furnished?

A. Mr. Luck ordered that made.

84 Otis Elevator Company

Q. Was this spider made specially on this job?

A. Specially for that job.

Q. State whether or not the Otis Elevator Com-
pany had any variety of hooks in their storeroom?

A. No, they did not.

Q. How were those hooks furnished for doing the
work on the different jobs ?

A. They were made.

Mr. FULTOX: What hooks.

Mr. LONERGAN: I am speaking of the hooks
for hoisting and lowering purposes.

A. Hooks for hoisting and lowering?

Q. Yes.

A. All depends on what purpose it was to be used
for.

Q. Yes sir, but if there was a hook needed for any
particular job, what was the necessary method pur-
sued to obtain it?

A. Oh, had to issue an order to the shop for the
man in the shop to make it. ?

Q. Would Mr. Luck have the right to get a hook
of that kind in that way?

A. Yes sir."

On cross-examination, the witness testified as fol-
lows:

''Q. Anybody would have a right to get a hook of
that kind made that way?

A. Anybody that was supposed to be foreman on
the job.

O. Anybody working there?

A. Any man that was foreman on the job.

vs. Christian Luck 85

Q. Any man working on the job would have a
right to get it?

A. Yes, if he had orders from his foreman.

Q. You don't know who Mr. Luck had orders
from when he went there? You don't know whether
Mr. Shepard told him to go get it or not?

A. No, I presume he got it on his own account.

Q. You say you presume?

A. Yes.

Q. You don't know?

A. Well, no.

Q. You don't know, do you?

A. No.

Q. Where did they get the spider that was used
on the Young Women's Christian Association build-
ing?

A. That was made in the shop.

Q. Who ordered it?

A. Well, I don't remember who ordered that now.
That was during my first career there. I don't re-
member."

On re-direct examination the witness testified as
follows :

Q. Mr. ERICKSON, do you know the different
foremen that are employed by the Otis Elevator Com-
pany?

A. Mr. Luck was foreman.

'Q. You know that he was a foreman?

A. Yes sir.

VAL BRISTOW, called as a witness for defendant,
testified as follows:

86 Otis Elevator Company

Is working on the Holtz Building, Fifth and Wash-
ington. Worked on the Trustee Building almost
from the start to the finish of the job, and at the
time of the accident to Luck was running the electric
hoist used to hoist the bucket out of the hole.

'*Q. From whom did you receive your orders and
directions while working there?

A. I received mine from Mr. Luck.

O. Were you acquainted with the hook that was
used on that job there at that time on the Trustee
Building?

A. Yes sir.

Q. I will show you Defendant's Exhibit '*D", and
ask 3'ou if that resembles in any way the hook that
was used on the Trustee Building job up to the time
of the accident to Mr. Luck?

A. I believe it was a little shorter, this bottom part
here, and it wasn't exactly straight down, but it
didn't lack within half an inch of being straight down,
might have been a least little angle — about half an
inch this way, and the least bit shorter — well, I would
say two inches shorter.

Q. Then, with the exception of this extension on
the end of the hook being about an inch or two, two
inches shorter, and having a little different angle, this
is practically a duplicate of that hook?

A. Yes sir, it has got about the same turn. Half
inch higher or more here.

Q. Same size this way?

A. Yes sir.

Q. And the hook or crook in that is about the

vs. Christian Luck 87

same, is it?

A. Yes sir.

■Q. Was that the condition as you have described
the hook during the entire progress of that work up
there to February 23, or up to the time of the acci-
dent to Mr. Luck?

A. Yes sir.

Q. And had Mr. Luck been using that hook on
that work himself?

A. Well, he didn't hook the buckets with it; any
of us whoever was working over the hole done the
hooking as far as that was concerned.

Q. But the hook was being used there where Mr.
Luck was doing his work, was it not?

A. Yss, sir.

Mr. Hyde is his stepfather. Never heard Mr.
Hyde make any statement to Shepard about the con-
dition of the hoist used on that job and never heard
Mr. Hyde make any statements to Luck about the
hook. Couldn't see the accident. Was running the
hoist off to one side. All he knew was that the cable
was slacked and the bucket dropped. A signal had
been given to lower the bucket. He started to lower
it and it went down about three feet, and the cable
went slack. The bucket had been partly down in the
hole. They had let it down with a sledge hammer
and claw hammer with which to fix the casing. They
already had a bucket of dirt so they let the hammer
down in the dirt and Luck took it out and used it
working on the casing. The bucket was raised up a
vvays to get out of his way. After they got the casing

88 Otis Elevator Company

plumb was going to let the dirt down again. Witness
lowered it; let out about three feet of cable, when
the bucket dropped off. Couldn't say just how far
the bucket w^as down in the well. Doesn't remember
who gave the signal to let the bucket down. Some-
times they had a whistle, sometimes they hollered.

''Q. I w^ish you would explain, Mr. Bristow, to
the jury just what Mr. Luck did upon that job in the
way of directions and ordering, if any?

A. Well, he bossed the moving around of things
— whatever was moved around.

Q. Whenever there was any moving to do you
say he bossed that?

A. Well, he was boss over me, I know^, and any-
thing I had to do. I took my orders from him. I was
an apprentice. I am an apprentice. I took my ord-
ers from him.

Q. Did you ever hear Mr. Luck giving orders to
any of the other men on the job?
A. Yes, I have.

Q. To whom have you heard him give orders?
A. I couldn't say what orders, or when or how,
but most all the time, most all the orders, as far as
that goes, to the helpers that are under him."
On cross-examination, the witness testified:
Q. That is simply to the helpers that were under
him?

A. Yes, sir, not to any of the mechanics, because
they were as much foreman as he is.

Q. Just the same as any other mechanics?

A. Yes sir, he was one mechanic on the whole job.

vs. Christian Luck 89

Q. Now, you say you were an apprentice?

A. Yes sir. . ,

Q. Who hired you?

A. Mr. Shepard.

Q. Never knew of Mr. Luck ever hiring or dis-
charging anybody?

A. No, not that I know of, not that I know of.

Q. Mr. Shepard did all of that did he?

A. I wouldn't say whether he did or didn't, or
who did, because I don't remember.

Q. That was your understanding there, wasn't
it?

A. I know who hired me, that is all.

*Q. That is your understanding that Mr. Shepard
was the man who did the hiring and discharging of
the men, wasn't it?

A. Well, I don't know.

Q. You are still working for the company, are
you?

A. Yes sir."

About three feet of cable had been let out before
the bucket slipped off. Couldn't say exactly where
the bucket was in the hole at that time. Could see
the cable slack, that is how he knew something slip-
ped off. Was six or seven feet from the mouth of the
well, and could see into it about three feet down. Had
let down a sledge and a claw hammer on the trip be-
fore. They took the sledge off of it. When the buck-
et dropped there was nothing in it but cement gravel.

Doesn't remember who took the old hook off. It
was taken off and the hook disappeared. Another

90 Otis Elevator Company

hook was not put on right away. The cable was fas-
tened to the bucket and later another hook was made.
Doesn't know who took the hook off the cable. Luck
did not return until ten days or two weeks after the
accident, and the hook had been gone before he got
back. Doesn't think Shepard was in town on the date
of the accident. Didn't see him there. Doesn't know
that the hook was taken down to Mr. Greene and put
in the safe, and never heard that. Won't swear that
he didn't take the hook off but doesn't remember any-
thing about taking it off. Thinks he would remember
it if he did. Doesn't remember having a conversation
with Luck about the hook after Luck came back. Did
not say to Luck that witness took the hook off and
Mr. Shepard sent it to the shop. Doesn't remember
that Shepard arrived half an hour after Luck was in-
jured.

On re-direct examination the witness testified that
there were a number of men coming and going on the
job, but doesn't know who hired or discharged them.
Shepard hired him, before Luck was in charge of the
work.

JUROR:

'Q. Now, did you ever receive any orders from Mr.
Luck?

A. Yes sir.

JUROR: Concerning his own work or did you
ever see him give any orders to any other men con-
cerning their work?

A. Yes, I have.

JUROR: When he gave you orders, did you ever

vs. Christian Luck 91

at any time see him come up out of the shaft, look
around and see what was going on, give orders, and
go back and attend to his work in the shaft, or did he
simply send up orders concerning the work down be-
low?

A. Well, he worked below and above and all
around."

All of the men changed shifts. Worked some-
times below and sometimes above. Luck took his
turn at digging and taking out the dirt. Luck was a
good workman ; as far as he knew the other men on
the job didn't give any orders or directions, and never
heard of any other man giving orders on the holes.

On re-cross examination the witness testified as
follows:

"Q. Now isn't it a fact that Mr. Luck was simply
an old employee there, and knew things better than
most of the others, and he used to direct, but he did
the same work as the others did?

A. Well, he was just the same as any other me-
chanic; when they are sent out with their helpers to
put in a certain job, they are the boss of their helpers.

Q. That is all?

A. Yes sir, give directions.

Q. Yes, that is it."

On re-direct examination the witness testified as
follows :

"Q. Then all the men that worked on that job
were, in a sense, helpers of Mr. Luck, were they not?

A. Yes sir.

'Q. That is what you mean when you say helpers,
is it not?

92 Otis Elevator Company

A. That is on the holes.

Q. On the holes?

A. Yes.

Q. So when you say he bossed all the helpers, you
mean he bossed all the men doing the work on that
job under him?

A. Yes sir.

Q. And he was a mechanic ?

A. Yes sir."

On re-cross examination the witness testified that
he never heard Luck giving the men orders for their
pay.

Whereupon, counsel for defendant, asked permis-
sion of the Court to recall Witness Hyde for cross-ex-
amination, for the purpose of laying a foundation to
impeach Witness Hyde's testimony, certain informa-
tion having been imparted to counsel for defendants
since said witness was under cross-examination ;
which application was denied by the Court, to which
ruling counsel for defendant then and there excepted,
which exception w^as allowed.

R. S. SHEPARD, called as a witness for defendant,
testified as follows:

Is Superintendent of Construction for defendant.
Such was his position in February, 1910. As superin-
tendent of construction has complete charge of the in-
stallation of elevators from the time contract^ is i''gi\-
ed. Places men on a job, instructs them how to put
the elevator in and turns over the same when they
are accepted. Jurisdiction extends over the entire
State of Oregon. First hired Luck about four years

i;^. Christian Luck 93

i\go iis an elevator constructor. Hired Luck as fore-
man on the Olds, Wortman and King job, which was
started the latter part of November, 1909; not very
much work had been done before Luck went on the
job. The boiler and the pumps had been set up.

"A. Mr. Luck was the foreman in digging those
well holes. We have two classes of men. We term
them mechanics and helpers, and sometimes we put in
a job with only one mechanic and a helper and other
times a mechanic will have several helpers and other
limes he will have several mechanics, and we term
the man in charge, we turn the job over and hold the
man that has started the work, we hold him responsi-
ble for the right installation of the elevator, and term
him foreman. How, he may have under his direction
any number of men. They may be mechanics, and
there may be helpers, but there is one foreman on
each job, and all the rest of the men take their ord-
ers and report to him, and if they want any instruc-
tions they get them from him, although at times I
might go onto a job and say to a mechanic or a helper
laying around without any work, and say, 'get busy at
this, or get busy at that,' without waiting to give the
order through the foreman. But the usual way is for
the foreman to get his instructions from me and trans-
mit to the men.

O. What arrangements was had with reference
to the Olds, Wortman & King job, as to vvdio was in
charge of the work there?

A. Mr. Luck was in charge of the work there
both before and after the accident.

94 Otis Elevator Company

Q. How much of the time were you about that
job?

A. Well, we had a great number — that is, not a
great number, but there was ten or a dozen jobs go-
ing; I guess we had fifty or sixty men working, and
with my office work and attending to all the different
jobs, I wouldn't get there more than probably two,
maybe three, times a day ; stay a few minutes and see the
foreman ; see if he needed any material or any men,
and leave and go to some other job.

■Q. What were the duties of Mr. Luck on this job?

A. Well, the duties were to see that the men kept
going, to see that the pumps were kept in operation,
to see that he kept dirt coming out of the holes.

Q. What duties did he have with reference to the
appliances used in the progress of the work?

A. The same as all the foremen that we have.
They send down — either they send a helper down as
a messenger to the shop and order material, or they
deliver it in person, or they deliver it to me, their ord-
ers for whatever they have. On our time slips, we
have a place left there for the foreman to note any ma-
terial or other things that he wants, and when he
turns in the time slips, he writes on there what he
needs to push the job along.

O. Who had charge of the appliances, with refer-
ence to seeing that they were in fit condition to use?

A. Well, of course that is any man's duty working
with tools. A man would be a fool that didn't try to
sec that everything was safe, but it was especially up
to the foreman of the jol), and of all jobs, T cautioned

vs. Christian Luck 95

the foreman time and again to use every precaution
to safeguard the men's Hves.

Q. Had you ever said anything of that sort to Mr.
Luck on this job?

A. I certainly had, because it w^as no play work,
digging those holes. It was a man's hard job, and
there was many chances for getting hurt, if you didn't
use the utmost precaution. We try in every way to
protect the men's lives.

Q. As a matter of fact, during the time that Mr.
Luck was on that job, what did he do, if you know,
with reference to getting appliances or devices or ma-
terials for that job?

A. Oh, in numerous cases he has sent sketches for
the shop for things that he wanted the blacksmith to
make, and he has ordered his staging lumber or any-
thing else he needed. When anything he needs on the
job, all he has to do is to order it from the shop.

Q. Well, would such an order of which you speak,
have to po through you ?

A. No sir, no sir. Any foreman I authorize —

Q. In you absence from the job, Mr. Shepard, sup-
pose some tool or some material or appliance would
be needed on the work, whose duty would it be to pro-
cure that instrumentality?

A. The foreman in every case and only him.

Q. And in this case?

A. Mr. Luck was the foreman."

Luck was paid Fifty Cents an hour, with time and
one-half for overtime. Luck was foreman at all times.
He was no more foreman after the accident than be-

96 Otis Elevator Company

fore. Luck's wages were not increased after the ac-
cident occurred, and there was no change in his au-
thority after the accident from what it had been be-
fore. Did not see the accident happen.

"Q. During the development work there, Mr.
Shepard, did you see that hook which was used to
fasten the bucket to the cable?

A. Yes sir.

0. Explain to the jury what kind of a hook it was.

A. Well, it was a hook similar to the one laying on
the table.

Q. By that you mean Defendant's Exhibit D.

A. Yes sir.

O. For all practical purposes, Mr. Shepard, please
state in what respect that hook which you now have
in your hands differs from the one in use at the time oi
the accident?

A. To the best of my knowledge and belief, it is
exactly the same. I don't know about its being any
different.

O. How about the crook part there?

A. This?

O. Yes ; how does the hook you have in your hand
compare with the one that was in use at the time of
the accident?

A. I think it is just the same, as near as I can say
from memory.

'O. How about the width of the crook there?

A. That is as wide as is necessary. The bail of the
l)ucket was only half an inch in diameter, and it would
easily slip through there, and it would do that on this

vs. Christian Luck 97

hook, and that is just the way the other one was, as
near as I can tell.

Q. And how would the bail of the bucket be at-
tached or fastened to the hook?

A. Let the pencil represent the bail of the bucket.
The bucket would be hooked in like that, and then
this part was over so there is the bail of the bucket
right in there, and if the bucket lays in any other
way, it is hard for it to fall out. Supposed to be the
safest kind of a hook there is made.

Q. If the bail of the bucket were properly attach-
ed to the hook, what would be the danger, or the like-
lihood of the bail getting loose from the hook on being
struck?

A. None whatever. Here is what they might have
done. Of course, I don't know, but I may be allowed
to say what might have happened. It is only my
opinion.

Mr. FULTON : I object to what might.

Q. Well, in what way could the bail of the bucket
become detached from that hook?

A. Through the hook being improperly fastened
to the bail, through not being hooked properly.

Q. I see.

A. The bail could be just laid in like that. It would
then hold the bucket as long as the bucket didn't land
on anything. If the bucket landed on anything, why
it would come unhooked, instead of the end beine
thrown over like that.

Luke returned to work after the accident, on March
third, at noon, and worked until May 28, 1910, as fore-

98 Otis Elevator Company

man on the Olds, Wortman & King job until the holes
were filled and after that as foreman on the Arthur
job on the East Side, where he worked until that was
completed and then he came into the shop. After the
shop work was finished there was no other job to put
him on, and witness let him out. Denied the conver-
sation testified to by Luck concerning Luck's inability
to work, and denied saying, '^What the hell are you
here for?''

After the accident Luck did not complain about his
physical condition ; made no statements about his in-
ability to do the work, and did the work all right.
Luck was putting in a big four thousand pound gar-
age elevator, heavy work as any. Saw him ?.t the
work. In the shop he built some guy posts. Denied
the conversation testified to by Hyde about the hook
being unsafe and about ordering Hyde to keep on
working there or quit the job. Hyde did not complain
in any way at all about the hook on said job or about
its being an unsafe hook. Never heard anyone com-
plain about the hook being unsafe, nor did anyone
call his attention to the hook as being improper or un-
safe, or an unsuitable appliance for that work. Luck-
never made any complaint.

''Q. What instructions, if any, had you given to
Mr. Luck in regard to the use of the appliances there?

A. In digging the holes we — as has been said ]>e-
fore by different witnesses, the holes were square and
about three feet by three feet six, and the man had to
work in the bottom, and there was also a puni]) had
to be down there to keep the water down, so he c.ui

vs. Christian Luck 99

dig and it made the space very cramped in the bottom
of the hole Now, he picked loose sufficient dirt or
gravel to fill a bucket, then he would whistle for the
bucket and they would send it down to him. Novv',
that cable — in filling a bucket, that cable would be in
the road.

Q. What?

A. That cable would be in the road. It was al-
most impossible to shovel and throw the dirt into the
bucket with the cable attached to the bail, therefore
it is necessary to use some sort of a hook, and this
hook that we use was made by Mr. Hyde, who had
had considerable experience in well digging, and the
kind of work, and everybody considered it the safest
thing that could be used for the purpose. Now, w^hen
we come to fill in the hole, it was a different proposi-
tion. Then we had a bucket, a square bucket instead
of a round bucket, that we used in digging. We use
a square bucket with a hinged bottom, because we had
— there wasn't room in the hole to dump it. It had to
be dumped from the bottom, but that bucket was fill-
ed right at the mouth of the shaft, and there was no
occasion for ever taking off the hook, and I gave Mr.
Luck instructions in every case when he was filling
in, to either wire that hook so that it couldn't come
off, the bail, — be thrown over, and become detached,
or else take the hook off entirely and fasten the cabel
around the bail with clamps, bring the cable up and
fasten it together with clamps above the bail, so there
would be no possibility of this thing happening, be-
cause in lifting the bucket, it is not nearly so apt to be-

100 Otis Elevator Company

come detached from the hook as it was in lowerine.

O. Those instructions were given by you to Mr.
Luck personally?

A. Yes sir.

0. Mr. Shepard, Mr. Hyde also said something
about the hook in use on the Olds, Wortman & King
job being wider apart, the coils of the hook were sep-
arated further than on the Y. W. C. A. building?

A. I don't think that was the case."

On both direct and cross-examination the witness
testified that he told Luck to wire the hook before
the accident when they were filling in the other hole.
The hook had been used on this well since the time
Luck started work. This was the first instruction he
had given about wiring the hook. Had not filled in
other holes with Luck. This was the first time he
had had any experience in filling in. He did dig an-
other hole but didn't fill in. Considers this one of the
safest hooks made.

*'Q. Why did you think it necessary to wire it
then?

A. So that it wouldn't — so that there would be no
danger of a careless man hooking that as I described
just now.

Q. You considered there was danger of it?

A. A careless man.

Q. Couldn't you make a hook that wasn't suscep-
tible of that danger?

A. No sir, the human element is everything.

Q. What hook are you using now?

A. Not using any hook.

vs. Christian Luck 101

Q. After this accident occurred, what did you use?

A. We used another hook similar.

'Q. Similar?

A. Yes sir.

Q. Where is it?

A. I don't know — I suppose down to the shop. I
don't know.

Q. Didn't you get a hook the next time that had
three coils in it?

A. No, I think that if anything, we put that over
once.

Q. Now, you know. I say, didn't you — a hook
with three coils?

A. No, I say I think it is only once.

Q. It isn't a question of thinking — you know, of
course you know. Now did you or did you not?

A. I say that I think it only come over once.

Q. I don't say you think — I say, Mr. Shepard, you
must necessarily know what is the fact.

A. No, I don't necessarily know.

Q. Do you know what kind of a hook you substi-
tuted for this one?

A. I have a general recollection.

'O. What?

A. I have a general recollection. That is my re-
collection.

Q. You pretend to say that you don't know wheth-
er you introduced three coils or not?

A. I think there was only two.

Q. That has only one.

A. That has one. I think we brought it over once
more.

102 Otis Elevator Company

Q. That was safer?

A. I don't know whether it was or not.
Q. You thought so, or else you wouldn't have put
on another coil.

A. We wouldn't have put it around again?

Q. I say you thought so, or you w^ouldn't have put
on another coil.

A. I don't remember whether I had that made. I
don't remember who gave instructions for making
that other hook."

Didn't know what became of the old hook. Was
nearly night after the accident when he got there. The
hook was then on the cable.

Q. ''Don't you know — didn't you hear your em-
ployes testify they didn't use that any longer — didn't
you? They waited until they got another — that they
tied it up; They took the hook off, and tied the cable
around the bucket until they got another one?

A. I don't think — the men weren't filling in. They
didn't fill in any more until I came.

Q. You say you looked at the hook, and — I asked
where it was. You said on the cable?

A. Yes sir, to the best of my recollection.

Q. You heard them say it was taken off, didn't
you?

A. They took it off afterwards, didn't they?

O. You heard the witness just preceding say it
was taken off?

A. Yes sir.

Q. They lashed the cable to the bucket from that
time on until another one was made, didn't you?

vs. Christian Luck 103

A. I heard that.

Q. Yet you say you came back that evening and
you found the hook still on the cable ?

A. I think so, I think it was still on the cable.

Q. Did you have it taken off ?

A. No sir.

Q. Do you mean to say that you never had it tak-
en off?

A. No sir.

Q. If it was taken off, it was taken off without any
authority from you?

A. No sir.

Q. You didn't consider it was necessary to take it
off?

A. Didn't have anything to do about it.

Q. What?

A. It is this way, if you will give me —

Q. Just answer the question, I say. You didn't
deem it necessary to take the old hook off?

A. Of course I deemed it necessary to take the old
hook off.

Q. Then why didn't you have it taken off.

A. It was gone the next morning when I went to
work.

Q. That evening you say?

A. The men wasn't working when I got back —
they hadn't worked any.

Q. You think the men themselves took it off and
got another hook?

A. No, it was taken off the next morning, and the
cable was fastened around the bail, and the hook dis-

104 Otis Elevator Company

appeared, and I don't know what became of it,

'Q. Were yon there when it was taken off the next
morning?

A. No sir.

Q. When did you first discover it was taken off?

A. It was gone the next morning.

Q. What time?

A. Oh, when I came on the job — I can't remember
just when.

Q. Did you say the hook was taken off then ?

A. Yes sir.

Q. Did you make any remark about it to them?

A. I can't remember what I did.

O. Did you ask them if they had gotten another
hook, or ordered another hook?

A. You see we didn't have any use for another.

Q. Oh, please answer my question. Did you ask
them if they had ordered another hook?

A. I couldn't say.

•Q. You can't say, Mr. Shepard? You mean to
say you don't remember?

A. No sir.

Q. Have you no recollection on that subject?

A. No sir.

O. None at all?

A. I don't remember —

O. Did you ask where the old hook was that was
taken off?

A. Ithink that I made inquiry.

O. You think you did make inquiry?

A. Yes sir.

vs. Christian Luck 105

Q. What did you learn?

A. I didn't learn anything.

Q. What?

A. I didn't learn anything.

Q. Couldn't learn anything about it?

A. No sir.

Q. Didn't that strike you as a little peculiar?

A. I don't know as I inquired what became of it.

Q. You just said you did. Now did you, or didn't
you?

A. I wouldn't be certain whether I inquired what
became of that hook or not, but naturally I would.

Q. Naturally you would, yes?

A. Yes.

Q. Quite naturally I should think?

A. Yes sir.

Q. Now what did you learn about it?

A. I didn't learn anything.

Q. Do you remember what — what was said about
it at that time?

A. No sir.

'Q. You have no recollection ?

A. No sir.

O. And you never concerned yourself about what
became of that hook?

A. Yes sir.

Q. What?

A. Yes, sir.

Q. You did concern yourself?

A. Yes sir.

Q. When did you concern yourself about it?

106 Otis Elevator Company

A. I tried to find what became of it.

Q. When ?

A. Immediately.

Q. That next morning?

A. I looked aromid, asked everybody what became
of the hook.

Q. You remember that you did, don't you?

A. Yes sir.

Q. Didn't you tell the jury a moment ago that you
didn't remember whether you did. You naturally did,
but didn't remember whether you did or not?

A. Well, I remember it.

Q. Now remember it?

A. I remember it.

Q. You didn't remember a moment ago?

A. I was a little uncertain at the time.

Q. Now, you do remember that you inquired?

A. Yes sir.

Q. Of whom did you inquire?

A. The men working on the job.

'Q. What ones?

A. I couldn't say which ones.

Q. What did they say?

A. They said they didn't know where it was.

Q. Didn't know where it was. Now you remem-
ber that distinctly, do you?

A. Yes sir.

Q. How does it happen that you didn't remember
that a minute ago?

A. Well, it lias been a long time ago.

O. T know. lUit wc have been talking about that

vs. Christian Luck 107

hook, and been talking about after it disappeared —
talking about it this forenoon before the jury that you
didn't produce that hook?

A. Yes.

Q. And didn't you try to refresh your memory, to
remember where that hook was when you came on the
witness stand?

A. Yes, I refreshed my memory.

Q. But you were never able to refresh your mem-
ory as to what the facts were until this minute?

A. Yes sir.

O. This is the first time it has come back to you.

A. If you will let me explain.

Mr. LONERGAN: Go ahead and explain, Mr.
Shepard, anything that you want.

Q. Glad to have you.

A. When you brought up there questioning the
witness about whether it wasn't a fact that I instruct-
ed him to take the hook off, and bring it to the shop,
and deliver it to Mr. Greene, it set me — that set me to
thinking, and I can't remember of ever giving any
such instructions, or anything of the kind, but I could
remember that I talked the next morning; I tried to
find out where that hook was.

O. You could remember that?

A. I remember that fact, yes sir.

Q. When did you first remember that ?

A. Well, I couldn't say exactly.

O. You remembered it while you were sitting here
in the courtroom and after that subject came up?

A. Possibly.

108 Otis Elevator Company

Q. What?

A. Yes sir.

Q. Remembered it before you went on the witness
stand?

A. Well, I might have, yes sir.

■Q. You think you did ?

A. I think I did.

Q. Wh}^ did you say then, since you have been on
the witness stand, just a moment or two ago, that you
couldn't recall whether you made any inquiry at all
about it, or not? Alight have done it, or would have
been natural, but couldn't recall vou did.

A. Well, a man on the witness stand with some-
body firing questions at him, isn't perfectly at ease
you know — might get a little rattled.

O. A man ouo:ht to be able to tell the truth?

A. Yes sir.

O. Whether he is at ease or not, oughtn't he?

A. Yes sir.

Q. Now, Mr. Shepard, do you state that you have
no idea — you stated to this jury that you have no idea
now where this hook is?

A. I do not.

Q. Havn't the slightest idea in the world?

A. No sir.

Q. Didn't it occur to you as a little strange that it
had disappeared there so suddenly that morning?

A. I don't know whether it did or not.

'Q. Well now, Mr. Shepard, you do know whether
il did or not. You do know whether it occurred to
you as l)eing a strange incident that that hook should

vs. Christian Luck 109

have disappeared so suddenly. You do know whether
it so appeared to you?

To which question counsel for defendant objected
as being immaterial, which objection was overruled
by the Court, who held that it is proper to attempt to
account for the hook. To which ruling defendant
then and there excepted, which exception was al-
lowed, and the witness further testified:

Q. I say you do know that?

A. What is the question.

Q. Well, I asked you if it didn't occur to you as
being a little strange that that hook should have dis-
appeared so suddenly. You said you didn't know
whether it did occur to you or not.

A. It so appears now.

Q. It does now appear to you a little strange?

A. It appears strange to me.

Q. It didn't occur to you then ?

A. I presume it did.

O. Then didn't you make a very earnest search
for it?

A. I made all the search I could.

Q. How much search did you make?

A. By asking the men and looking around.

O. When did you have this one made?

A. I had it made when the case was set for trial, I
think about a month ago.

O. Now, Mr. Shepard, isn't it a fact that you took
that old hook down and put it in your safe?

A. No sir.

Q. In the office?

110 Otis Elevator Company

A. No sir.

O. Who did do it ?

A. I don't know, and I don't know that anybody
did.

Q. You never heard of it being there?

A. No sir.

Q. Never heard of the old hook being safely put
away?

A. No sir, I never did.

O. You know it wasn't used any more after this
accident?

A. I never saw it since.

Q. And you have never seen it since?

Mr. LEITER: If we had the hook Mr. Fulton, we
would certainly have it here.

Mr. FULTON: Of course I am not disposed to
question your word, Mr. Leiter.

Mr. LEITER: Thank you.

Mr. FULTON : And you are not responsii)le for
the hook being away."

After the accident, Luck worked the same as he al-
ways did, including digging down in the well. Never
dug as much as the rest of the men because he didn't
have time. He was superintending the whole job.
Occasionally would take a shift at digging. Luck
hired and discharged men that were sent from the em-
ployment office. Can't say what men he employed
or discharged. Hanson's agency had instructions
from Shepard to send men when the foreman tele-
phoned to him. Considers that hiring men by Luck.
Told Hanson to send the men up and what wages they

vs. Christian Luck 111

were to get. The men reported to Luck.

On re-direct examination the witness testified as
follows :

Luck had all authority as to the men sent up by the
employment agency. He could reject or accept them
as he wanted to. Has not seen the hook since the
night of the accident, and no one has ever told him
what became of the hook or that he knew where the
hook is or was. The hook introduced as an exhibit
was made by a blacksmith under Mr. Bristow's de-
scription. The hook used on the Y. W. C. A. building
was a part of Mr. Hyde's equipment taken over along
with other equipment on the job. The hook made by
Hyde was the one in use at the time Luck was injur-
ed, and was sent up to Olds, Wortman & King's
building by the witness. The hook had also been used
on the Y. M. C. A. job and returned to the shop from
there and afterwards sent to the Olds, Wortman &
King building.

R.W. GREENE, being recalled, testified that the
hook in use at the time of the accident was never in
his possession ; that he never saw the hook or had it in
his possession after the accident, and that he never
locked the hook in the office safe.

Whereupon, the defendant rested.

C. N. LUCK, re-called in rebuttal, testified as fol-
lows :

Shepard never said anything to him in the way of
instructions to have the hook wired, and never heard
of his giving any such instructions. That he never
wxnt down any of the wells after he was injured ; nev-

112 Otis Elevator Company

er did any physical labor upon going to work after
the accident. Never even took his coat off. Shepard
told him that he didn't have to do anything; that if
he would come back Shepard would, if he had to, fur-
nish an easv chair if Luck wanted to sit down to run
the job. Never ordered any machinery or appliances.
The casing handle and the spider were used on the
Y. W. C.A. job two years before. Shepard brought
them up in the buggy himself.

After the accident, on the garage at Union Avenue
and Davis Street when Shepard sent him there with
one helper and he wasn't able to do the work the wit-
ness told Shepard he would have to send more men
there. Shepard remarked that the job would cost too
much then ; that tw-o men were supposed to do the
work. Next morning Shepard sent two more men.
When the job was done Shepard told him he had bet-
ter go and get rested up and come back when he got
wxll. The bail on the bucket was either five-eighths
or three-fourths. That hook would have to be spread
to get that bail on. Plaintiff's Exhibit "D" was noth-
ing like the hook in use at the time of the accident.

On cross-examination the witness testified that he
did not work in the shop after the East Side Garage
job. Shepard told him that the spider had i)ecn,
used on the Y. W. C. A. building.

JACK ELIA, called as a witness in rebuttal, testi-
fied that he was on the job when Luck came back
after the injury. That up to the time Elia was dis-
charged by Shepard he did not see Luck do any work
around tliere. Worked there two or three weeks aft-

vs. Christian Luck 113

er Luck returned. During that time Luck did no phys-
ical work. Witness was discharged by Shepard while
still on the Olds, Wortman & King job.
Whereupon plaintiff rested.

Whereupon counsel for defendant moved the Court
for a directed verdict, upon the grounds that the plain-
tiff has not shown any negligence on the part of the
defendant; that the plaintiff assumed the rick of the
injury, particularly insofar as the hook is concerned;
that having authority to select the appliances, even if
the accident were due to defective appliances, plain-
tiff was guilty of contributory negligence in failing to
select a proper appliance, and that the accident was
due to the improper manner in which the bail was at-
tached to the hook, being the negligence of a fellows-
servant.

Whereupon the Court overruled defendant's mo-
tion for a directed verdict, to v/hich ruling defendant
then and there excepted, which exception was allow-
ed.

Whereupon, after argument of counsel, the Court
instructed the jury as follows:

INSTRUCTIONS OF THE COURT TO THE

JURY.

''Gentlemen of the Jury: This action is brought by
Mr. Luck against the Otis Elevator Company to re-
cover damages for an injury received by him which
he charges was due to the negligence and want of
care of the defendant company. The charge in the
complaint, and upon which he bases his right to re-
cover, is that the company negligently and carelessly

114 Otis Elevator Company

failed to provide a reasonably safe hook with which a
bucket was attached to a cable at the time it w^as
being lowered into a shaft or well where he w^as at
work, and by reason of which fact, the bucket slipped
from the hook and fell, and struck and injured him.
The defendant denies the negligence charged. In oth-
er words, it denies that it neglected to furnish a rea-
sonably safe hook. It says further that the bucket did
not fall because of the condition of the hook, but by
reason of the fact of the man working at the top of
the shaft negligently and carelessly attached the
bucket to the hook, and that it slipped from the hook on
account of the manner in which it was fastened, rather
than from a defect in the hook. Second, it says that
Mr. Luck w^as in charge of the work at the time of
the accident, and that it w^as part of his duty to pro-
vide or see that a suitable hook was provided, for use
in lowering this bucket, and that it furnished suitable
hooks and material for that purpose, and left to Air.
Luck the duty of selecting the character of hook to
be used, and that, with that duty, he chose to use this
particular hook when he could have provided, as they
say, a suitable hook, if this one w^as not suitable, and
that by reason of that fact, he was injured through
his own fault and negligence in not doing what he
was authorized to do by his terms of employment.
They say, third, that the danger, if there was any
danger from the use of this hook, was known to ^^Tr.
Luck, or that it was so obvious and apparent that he
ought to have known it as a reasonable man, and
therefore when he continued to work in this shaft and

vs. Christian Luck 115

use this hook, or where this hook was being used,
without objection and without protest on his part, he
assumed the dangers from the use of this implement,
and couldn't recover against the defendant on account
thereof.

Now, this constitutes the issues in this case, and
the first question for you to determine will be, wheth-
er or not the hook in use at the time of this accident,
and to which this bucket was attached, was reason-
ably suitable and proper for the purposes for which it
was being used. The law is, that an employer is re-
quired to exercise reasonable care and diligence to
provide his employee or employes with reasonably
suitable tools and appliances to work with, and it was
therefore the duty of the defendant in this case to
exercise reasonable care and caution to provide suit-
able appliances with which to handle this bucket, and
if it did not do so, and by reason of that fact, the buck-
et fell and injured the plaintiff without any fault on
his part, it vvould be liable to him for such injury. Now
what constitutes reasonable care and caution depends
upon the circumstances of each case. The standard is,
w^hat vv^ould a reasonably prudent man have done un-
der the same circumstances, and, therefore, the test
will be whether or not a reasonably prudent person in
charge of work of that character — of the character in
vdiich the plaintiff was engaged at the time of his in-
jury, would have provided a hook of the kind and
character in use at that time, and if he would, and the
defendant's conduct measured up to this standard,
then it discharged its duty and would not be liable

116 Otis Elevator Cov^pany

for an accident that might have occurred without its
fauh. The defendant was not, and no employer is an
absolute insurer of the safety of his employees. He
is under no obligation to respond in damages to a man
in his service who is injured unless he himself is at
fault. Accidents may happen, and are likely to hap-
pen at any time without fault of anybody, and for such
accidents, an employer is not liable. Nor is negli-
gence to be imputed or inferred from the mere fact
of the accident, but the burden is on the plaintiff in
this case to show by a preponderance of testimony
that the hook in use at the time of this accident was
not suitable and proper under the rule, substantially
as I have given it to you. In other words, that it was
not such a hook as a reasonably prudent man would
have provided under the circumstances for use in that
character of business. If you find that it was such a
hook, then of course this case is ended, and your ver-
dict would be in favor of the defendant.

If, on the other hand, you find that it was not a
suitable hook, then it will be necessary for you to con-
sider the other questions that I have suggested to
you. It is claimed by the defendant that Mr. Luck, as
I said, was in charge of the work, and that he had au-
thority under his employment to provide these instru-
mentalities, and that it furnished suitable material
from which hooks could be made, or suitable hooks,
and left it to Mr. Luck's judgment as to the kind and
character that should be used in the work. If it did
that, and if that was the relationship of the parties,
then Mr. Luck could not recover against it, because

vs. Christian Luck 111

of a defective hook that he himself used when he had
a right, and could have selected or procured another.
If the company furnished suitable materials, — suita-
ble hooks, or suitable materials with which to make
hooks — and left the question to Mr. Luck's judgment,
as to the kind and character to be used, then it dis-
charged its duty, and he will have no cause to com-
plain if he was injured because of the character of
hook that he voluntarily used. But unless he was
charged under his employment with this duty, then it
makes no difference whether he was a foreman or a
common laborer, because the obligation of an employ-
er to furnish, when he assumes to do so, his foreman
with reasonably safe tools and appliances, to vv^ork
with, is just the same as any other workman, and the
relationship of Mr. Luck and the defendant in this
connection only becomes important in determining
whether he himself had authority to make selection
of this hook, or instrumentality.

If he had, whether he was a foreman or a common
laborer, and he chose a defective hook or chose to use
a defective hook, when he had a right to procure an-
other and suitable one, he would have no cause of ac-
tion against the company whether a foreman or com-
mon laborer. On the other hand, if he was not
charged with that duty, did not have that right, then
it makes no difference whether he was a foreman or a
laborer, because the company owed him just exactly
the same duty, regardless of his grade of employment.

Then, another question. It is said in this case, and
claimed by the defendant, that this accident occurred

118 Otis Elevator Company

through the neghgence or carelessness, as I suggest-
ed, of the man at the top of the shaft who attached
the bucket to the hook ; in other words, that the buck-
et fell, not because of a defective hook, but because of
the careless manner in Avhich it w^as attached, and if
that was true then the company would not be liable to
Mr. Luck for his injury, because the negligence
would not be that of the company, but would be that
of a fellow servant, a man working w^ith him and for
w^hich the company w^ould not be liable.

Third. It is claimed that because this hook had
been in use for some considerable time on this w^ork,
and that Mr. Luck knew that fact, he is chargeable —
or that he assumed the risk of damage or injur\ to
himself, from the use of that hook. Now, unless Air.
Luck was charged with the duty, or had the authority,
to provide this hook and instrumentality for lr,wer-
ing this bucket, he had a right to presume that the
company had discharged its duty and exercised rea-
sonable care in providing instrumentalities, and he
did not assume the risk of using this instrumentality
unless he knew that they were unsafe and improper,
and appreciated the danger from using them, or un
less the danger was so obvious and apparent, that
any reasonable man would have refused lo work in
the well where this bucket was being lowered, or
would have complained to the company on account of
the defective hook.

There has been evidence introduced tending to
show that some time before this accident, and v/hilc
this same hook and line were being used in lowering

vs. Christian Luck 119

a bucket into the elevator shaft, that the bucket Fell
and struck one of the workmen. That evidence is
only proper, and could only be considered by yon for
the purpose or as it may bear upon the question ris to
whether the hook was a safe and proper hook. There
is no evidence here that the defendant company knew
of that accident, or was advised of it — no direct evi-
dence that it knew of that accident or was advised of
it, and the evidence could only be considered as it
may bear upon the question as to whether the hook
was a defective one or not.

There is also testimony in this case from one wit-
ness for the defendant to the effect that Air. Luck
was advised some time before this accident, that this
hook ought to have been wired to the bucket ar-d he
v\^as directed not to use the bucket without wiring the
hook. Now, there is a conflict in the testimony upon
that subject. The superintendent of the company, as
1 remember, testified that he told Mr. Luck that they
ought not to use this hook for lowering the bucket
without vvaring the hook to the bucket, or else take the
hook off and clamp the cable on. Mr. Luck denies
that, and that is a question of fact for you to deter-
mine from the testimony. Of course if Mr. Luck was
advised by the superintendent not to use this hook in
the manner in which he did, but to wire it on, and he
had authority to do that, and regardless of that ad-
vice, and regardless of the directions, he went on and
used the hook in the manner in which he did, and was
injured, then it was his own fault, and not the fault
of the company. But it is a question of fact for you

120 Otis Elevator Company

to determine where the truth Hes in reference to that
statement, and I think it is fair, in considering' that
question, for you to consider the probabiHties of the
case — whether it is probable that a man working in a
well three feet wide in one direction and three and a
half feet in another, with a bucket descending loaded
with soil, weighing from 400 to 500 pounds, would
have neglected to follow the instructions which af-
fected his own safety if he had been advised that the
hook was unsafe, and had been directed to wire it to
the bail, or take it off the cable and fasten the cable
in some other way. And in considering- this question,
I think you have a right to consider the probabilities
of the case, and to say whether a reasonable man
would have worked under such a bucket when he had
been advised that it was unsafe and improperly fas-
tened.

Now, you are the judges of all questions of fact in
this case. You are the judges of the credibility of the
witnesses. Every witness is presumed to speak the
truth. But this presumption, however, may be over-
come by the manner in which the witness testified, by
his appearance on the witness stand, by the character
of his testimony, and you are to determine whether a
witness who has testified to a thing has told the truth,
and the weight to be given to the testimony.

Now, in the event that the defendant is liable in this
case, and should respond in damages to the plaintiff,
under the law as I have given it to you, and the testi-
mony as given here from the witness stand, then it
will be necessary for you to determine the amount of

vs. Christian Luck 121

damages which he shall recover. Upon that question
there is no fixed rule which the Court can state to you.
It is a matter necessarily left to the sound judgment
and discretion of the jury, the object to be attained is
compensation. The purpose in awarding damages, is
to compensate the damaged plaintiff in dollars and
cents for his injury, but in the very nature of things,
it is impossible to lay down any certain definite rule
or standard by vv^hich an injury can be measured in
dollars and cents, so that it is important and necessary
for a jury to consider the evidence, and all the evi-
dence in the case, and to determine as nearly as it can
what would be fair — what is a fair, just compensation
for the injury sustained. In doing that, you have a
right in this case, and it is your duty, if you reach that
stage of the case, to consider the nature and character
of this injury, whether it is temporary, whether it is
probably permanent, how, if any, it affects the plain-
tiff's earning capacity, his physical condition before
and since the accident, his ability to earn money,, and
his impaired ability since, if any, and his physical suf-
ferng that he may have sustained on account of the
injury, and from all these facts arrive at as just and
fair conclusion as you can under the circumstances of
the case. Of course it is needless to say to you that
this case, like all cases, must be tried upon the facts
and law as given here, and without reference to the
parties. You have no right to find a verdict in favor
of the plaintiff because of sympathy for him, unless
you think the defendant is liable, and you would have no
right, if you think the defendant is liable, to increase

122 Otis Elevator Company

your verdict because of any sympathy you may have
for the plaintiff. You are to determine the amount you
think is just and fair compensation for his injuries.

Whereupon, it is now certified that the Court in-
structed the jury as follows :

''There has been evidence introduced tending to
show that some time before this accident, and while
this same hook and line were being used in lowering
a bucket into the elevator shaft, that the bucket fell
and struck one of the workmen. That evidence is only
proper, and could only be considered by you for the
purpose or as it may bear upon the question as to
whether the hook was a safe and proper hook. There
is no evidence here that the defendant company knew
of that accident, or was advised of it — no direct evi-
dence that it knew of that accident or was advised of
it, and the evidence could only be considered as it may
bear upon the question as to whether the hook was a
defective one or not/'

To which instruction the defendant, in the pres-
ence of the jury, and counsel, and before the jury re-
tired, duly excepted, which exception was allowed.

WHEREUPON, it is now certified that the de-
fendant, before the argument of said cause to the
jury was begun, duly requested the Court in writing
to give to the jury on its behalf the following instruc-
tions:

"If you find that defendant was negligent as charg-
ed in the conq^laint, before plaintiff can recover in
this action, you must further find that defendant's
negligence was the proximate cause of the accident;

vs. Christian Luck 123

that is — that cause which conduced directly to the
accident, and without which the accident Vvould not
have occurred."

"I instruct you that plaintiff assumed the ordinary
risk and dangers incident to his employment, and if
you find from the evidence that the risk of the bucket
becoming dislodged from said hook while being low-
ered into the v/ell was a risk and hazard incident to
plaintiff's employment, then I instruct you that such
risk was assumed by him, and he cannot recover."

''I also instruct you that plaintiff assumed such
risks in and about his employment as were open and
obvious. An open and obvious risk is one that is in-
stantly observed and appreciated by a person of ord-
inary intelligence. If you find from the evidence that
the risk and danger of the bucket becoming unfasten-
ed from the hook as the same was being lowered into
the well, was such an open and obvious risk as would
be immediately observed and appreciated by a person
of ordinary intelligence, then T instruct you that
plaintiff assumed said risk and he cannot recover in
this action."

''If you find from the evidence that at the time of
receiving his injury, plaintiff was just as well aware
as his employers, of the condition of said hook, and
the use to which the same was put, and of the dan-
gers of working around the same, or if you find that
by reason of his being in and about, and in close prox-
imity to said hook for a considerable period of time,
he had equal means with, or better opportunities than,
the defendant, to discover that said hook was an un-

124 Otis Elevator Compajiy

suitable appliance, and that the danger of working-
there under such conditions was open and could have
been discovered by the plaintiff by the use of ordi-
nary care, then I instruct you that plaintiff cannot re-
cover, and your verdict should be for the defendant."

It is certified that the Court in his charge to the
jury, did not give to the jury said instructions in the
form as above requested.

WHEREUPON, after the Court had instructed the
jury as hereinbefore certified, on pages 49 and 52, in-
clusive, of this Bill of Exceptions, and before the jury
retired, the following colloquy between Counsel and
Court took place :

''Mr. LEITER: I simply desire to make exception
to give the defendant's requested instructions in the
form asked, and specify specifically an exception to
that instruction given by your Honor, relative to the
other accident — falling of the bucket on another job.

COURT: I think I have given in substance the in-
structions I intended to.

Mr. LEITER: I have not been al)le to check them
up entirely, and for that reason desire an exception."

WHEREUPON, the Court allowed said excep-
tion.

WHEREUPON, the said jury retired to consider
their verdict, in charge of an officer duly sworn, as
by law provided, and after due deliberation returned
into Court a verdict in favor of plaintiff and against
the defendant in the sum of Seven Thousand ($7,-
000.00) Dollars.

WHEREUPON, on ihc fifteenth day of March,

vs. Christian Luck 125

1912, judgment was entered on the verdict in favor of
the plaintiff and arainst the defendant in the sum of
Seven Thousand ($7000.00) Dollars and $94.90 Dol-
lars, costs and disbursements.

WHEREUPON, the defendant was allowed to and
including the 8th day of May, 1912, in which to ten-
der its Bill of Exceptions herein.

WHEREUPON, the Court now being willing to
preserve the record, in order that its rulings may be
reviewed for error, if any there be, now hereby certi-
fies that the foregoing Bill of Exceptions contains all
the evidence offered or admitted on behalf of either
party, together v/ith all the rulings of the Court dur-
ing said trial, and exceptions taken, or allowed, and
the Court hereby refers to and incorporates and
makes a part of this Bill of Exceptions Plaintiff's Ex-
hibits "1", "2" and "3", and Defendant's Exhibits "A",
"B" and ''C", and the Court hereby further certifies
that the said Bill of Exceptions was presented within
the time allowed by this Court, and by law, for the
filing and presentation of the same.

WHEREUPON, this Bill of Exceptions is now
settled certified and signed, this 13 day of May, 1912.

R. S. BEAN,
Judge of Said Courts

The within Bill of Exceptions was tendered this
25th day of April, 1912.

R. S. BEAN,

Judge.

And afterwards, to-wit, on the 13 day of May, 1912,

there was duly filed in said Court, a Petition for

126 Otis Elevator Company

Writ of Error in words and figures as follo\\'s,
to-wit :

[Petition for Writ of Error.]

In the District Court of the United States for the
District of Oregon,

CHRISTIAN LUCK, Plaintiff,

vs.
OTIS ELEVATOR COMPANY, Defendant.

Otis Elevator Company, defendant in the above en-
titled cause, feeling itself aggrieved by the verdict of
the jury, and the judgment in the above entitled ac-
tion, entered on the fifteenth day of March, 1912, for
the sum of Seven Thousand ($7000.00) Dollars and
ninety-four and 90-100 ($94.90) Dollars, costs and dis-
bursements, in favor of plaintiff and against the defend-
ant, comes now, by its attorneys, Griffith, Leiter and
Allen, and petitions said Court for an order allowing
said defendant to prosecute a writ of error to the Hon-
orable, The United States Circuit Court of Appeals
for the Ninth Circuit, under and according to the laws
of the United States in that behalf made and provided,
and also that an order be made fixing the amount of se-
curity which the defendant shall give and furnish upon
said writ of error, and that upon the giving of such
security all further proceedings in this Court be suspend-
ed and stayed until the determination of said writ of
error, and your petitioner will ever pray. —

GRIFFITH, LEITER & ALLEN,

Attorneys for Dcfend.-'.nl.

vs. Christian Luck 127

The foregoing- petition for Writ of Error is hereb}^
allowed, this 13 day of May, A. D., 1912.

R. S. BEAN,

Judge.
DISTRICT OF OREGON,
County of Multnomah — ss.

Due service of the within petition for writ of error
is hereby accepted in Multnomah county, regon, this
13 day of May, 1912, by receiving a copy thereof duly
certified to as such by R. A. Leiter, of attorneys for
defendant.

C. W. FULTON,

Attorney for Plaintiff.

[Endorsed]: Petition for writ of error. Filed May

13, 1912.

A. M. CANNON,

Clerk.

And afterwards, to-wit, on the 13 day of May, 1912,
the same being the 60 Judicial day of the Regular
March, 1912, Term of said Court; present: the
Honorable R. S. BEAN, United States District
Judge presiding, the following proceedings wxre
had in said cause, to-wit :

[Order Allowing Writ of Error.]
In the District Court of the United States for the
District of Oregon.
CHRISTIAN LUCK, Plaintiff,

vs.
OTIS ELEVATOR COMPANY, Defendant.

Now, on this day, this cause comes on to be heard
upon the petition of the defendant, Otis Elevator

128 Otis Elevator Company

Company for a writ of error, and for the allowance
thereof. Said defendant appearing by its attorneys,
Griffith, Leiter and Allen, and it appearing to the
Court that the said defendant has filed its petition for
a writ of error herein, and has therewith filed its as-
signment of errors.

It is ordered that said writ of error be, and the same
is hereby allowed, and that a citation issue and be
served as by law provided.

It is further ordered that the amount of the bond to
be given by the said defendant, Otis Elevator Com-
pany, be fixed at the sum of Nine Thousand ($9,-
000.00) Dollars, with good and sufficient surety to be
approved by the Court, and that such bond when so
filed shall operate as a supersedas bond in said cause,
which being now filed, with American Surety Com-
pany of New York as Surety, is hereby approved.

Dated May 13, 1912.

R. S. BEAN,

Judge.

And afterwards, to-wit, on the 13 day of May, 1912,
there was duly filed in said Court, Assignments
of Error, in words and figures as follows, to-wit:

[Assignments of Error.] '

In the District Court of the United States for the
District of Oregon.

CHRISTIAN LUCK, Plaintiff,

vs.
OTIS ELEVATOR COMPANY, Defendant.

Comes now the defendant, Otis Elevator Company,
a corporation above named, and in connection with its

vs. Christian Luck 129

petition for a writ of error in the above entitled action,
alleges that there was error on the part of the Dis-
trict Court of the United States for the District of
Oregon in regard to the matters and things hereinafter
set forth, and the defendant thereupon makes this, its
assignment of errors :

I.

The Court erred in permitting counsel for plaintifl
to introduce in evidence, over defendant's objection
and exception, the picture from Gray's Anatomy.

II.

The Court erred in permitting counsel for plaintiff
to ask, and in permitting the v/itness, A. G. Bettman,
to answer, over the objection and exception of defend-
ant, the following questions:

''Q. How will it affect any nerve centers, or nerves
of the body?

A. Well, pressure would affect the cord. At pres-
ent there seems to be no pressure on the cord."

III.

The Court erred in permitting counsel for plaintiff
to ask the witness H. A. Taylor, and in permitting
said witness to answ^er over defendant's objection and
exception, the follov\^ing question:

"Q. Now, while you were working there in the
well, state whether or not any accident occurred, and
if so, what?

A. A bucket fell 53 feet there."

IV.

The Court erred in permitting council for plaintiff

130 Otis Elevator Company

to ask the witness H. A. Taylor, and said witness to
answer, over the objection and exception of the de-
fendant, the following question :

"Q. Never mind what he said. I understand you
had a talk also with Mr. Shepard about the injury you
received at that time. Did you have any talk with him
about the injury you received at that time?

A. The injury that I received at that time — I told
Mr. Shepard at the time that I wanted to be sure the
man understood how to hook the hook in there. 1
didn't like to go in the shaft and put my life in danger
at the bottom of that shaft with a man who didn't
know anything about the hook."

V.

The Court erred in overruling the motion made by
defendant that all the testimony of the witness H. A.
Ta3'lor in regard to the falling of the bucket be strick-
en out, because Counsel for plaintiff had failed to
show that defendant had any knowledge of the occur-
rence.

VI.

The Court erred upon the trial of said cause in over-
ruling the motion of defendant for a directed verdict
made at the close of all the evidence admitted upon
the trial of said cause upon the grounds that plaintiff
had not shown any negligence on the part of the de-
fendant; that the plaintiff assumed the risk of the in-
jury, particularly insofar as the hook was concerned ;
that having authority to select the appliances, even if
the accident were due to defective ai)pliances, ])laintiff
was guilty of Contributory negligence in failing to

vs. CJudstian Lwch 131

select a proper appliance and that the accident was
due to the negligence of a fellow-servant.

VII.

The Court erred in instructing the jury as follows:

**There has been evidence introduced tending to
show that some time before this accident, and while
this same hook and line were being used in lowering a
bucket into the elevator shaft, that the bucket fell
and struck one of the workmen. That evidence is only
proper, and could only be considered by you for the
purpose or as it may bear upon the question as to
whether the hook was a safe and proper hook. There
is no evidence here that the defendant company knew
of that accident or was advised of it — no direct evi-
dence that it knew of that accident or was advised of
it, and the evidence could only be considered as it may
bear upon the question as to whether the hook was a
defective one or not."

VIII.

The Court erred in refusing to instruct the jury at
the request of the defendant as follows:

''If you find that defendant was negligent as
charged in the complaint, before plaintiff can recover
in this action, you must further find that defendant's
negligence was the proximate cause of the accident,
that is — that cause which conduced directly to the ac-
cident, and without which the accident would not
have occurred."

IX.

The Court erred in refusing to instruct the jury at
the request of the defendant as follows:

132 Otis Elevator Covipany

''I instruct you that plaintiff assumed the ordinary
risks and dangers incident to his employment, and if
you find from the evidence that the risk of the bucket
becoming dislodged from said hook while being low-
ered into the well was a risk and hazard incident to
plaintiff's employment, then I instruct you that such
risk was assumed by him, and he cannot recover/'

X.

The Court erred in refusing to instruct the jury at
the request of the defendant as follows :

"I also instruct you that plaintiff assumed such
risks in and about his employment as were open and
obvious. An open and obvious risk is one that is in-
stantly observed and appreciated by a person of ordi-
nary intelligence. If you find from the evidence that
the risk and dans^er of the bucket becomino" unfasten-
ed from the hook as the same was being lowered into
the well, was such an open and obvious risk as would
be immediately observed and appreciated by a person
of ordinary intelligence, then I instruct you that plain-
tiff assumed said risk and he cannot recover in this ac-
tion."

XI.

The Court erred in refusing to instruct the jury at
the request of the defendant as follows:

"If you find from the evidence that at the time of
receiving his injury, plaintiff was just as well aware
as his employers, of the condition of said hook, and
the use to which the same was put, and of the dangers
of working around the same, or if you find that by
reason of his being in and about, and in close proxim-

vs. Christian Luck 133

ity to said hook for a considerable period of time, he
had equal means with, or better opportunities than,
the defendant, to discover that said hook was an un-
suitable appliance, and that the danger of working
there under such conditions was open and could have
been discovered by the plaintiff by the use of ordinary
care, then I instruct you that plaintiff cannot recover
and your verdict should be for the defendant."

XII.

The Court erred in entering judgment in said cause
in favor of the plaintiff and against the defendant for
the sum of Seven Thousand ($7000.00) Dollars.
Dated May 13, 1912.

CxRIFFITH, LETTER & ALLEN,

Attorneys for Defendant.
DISTRICT OF OREGON,
County of Multnomah — ss.

Due service of the within assignment of errors is
hereby accepted in Multnomah county, Oregon, this
13 day of May, 1912, by receiving a copy thereof certi-
fied to as such by R. A. Leiter, of attorneys for de-
fendant.

C. W. FULTON,

Attorney for Plaintiff.

[Endorsed] : Assignment of Errors. Filed May 13,

1912.

A. M. CANNON,

Clerk.

And afterwards, to-wit, on the 13 day of May, 1912,

there was duly filed in said Court, a Bond in

words and figures as follows, to-wit:

134 Otis Elevator Company

[Bond on Writ of Error.]

In the District Court of the United States for the
District of Oregon.
CHRISTIAN LUCK, Plaintiff,

vs.
OTIS ELEVATOR COMPANY, Defendant.

KNOW ALL MEN BY THESE PRESENTS,
that we, OTIS ELEVATOR COMPANY, a corpora-
tion duly organized and existing under and by virtue

of the laws of the State of New Jersey, as Principal,
and AMERICAN SURETY COMPANY of NEW
YORK, as Surety, are held and firmly bound unto
Christian Luck, in the sum of Nine Thousand ($9,-
000.00) Dollars, to be paid to the said Christian Luck,
for the payment of which, well and truly to be made,
we bind ourselves and each of us, and our and each of
our successors and assigns, jointly and severally, free-
ly by these presents.

Sealed with our seals and dated the day of May, A.
D., 1912.

WHEREAS, the above named Otis Elevator Com-
pany has applied for and obtained a writ of error to
the United States Court of Appeals for the Ninth
Circuit, to reverse the judgment rendered in the above
entitled cause by the Circuit Court of the United
States for the District of Oregon.

NOW, THEREFORE, the condition of this obli-
gation is such that if the above named Otis Elevator
Company shall ])rosccutc said writ to effect, and as-
sume all damages and costs if it shall fail to make
good its plea, then this obligation shall be void, other-

vs. Christian Luck 135

wise the same shall be and remain in full force and

virtue.

OTIS ELEVATOR COMPANY,
By Griffith, Leiter & Allen, its Attorneys.
AMERICAN SURETY COMPANY of NEW
YORK,

By W. L. Page,

Resident Vice President.
Attest: A. EDWARD KRULL,

Agent.
(Seal.) A. Edward Krull,

Resident Ass't Secretary.
The within board is hereby approved this 13 day of
May, 1912.

R. S. BEAN,

Judge.

[Endorsed] : Bond on Writ of Error. Filed May
13, 1912.

A. M. CANNON,

Clerk.

And afterwards, to-wit, on the 13 day of May, 1912,
there was duly filed in said Court, a Writ of Er-
ror, in words and figures as follows, to-wit:

[Writ of Error.]

In the United States Circuit Court of Appeals for the

Ninth District.

OTIS ELEVATOR COMPANY, a corporation,

Plaintiff in Error,
vs.
CHRISTIAN LUCK, Defendant in Error.

136 Otis Elevator Company

THE UNITED STATES OF AMERICA, ss.

THE PRESIDENT OF THE UNITED STATES
OF AMERICA.

To the Judges of the District Court of the United

States for the District of Oregon :

GREETING:
Because in the records and proceedings, as also in
the rendition of the judgment of a plea which is in
the District Court before the Honorable R. S. Bean
one of you, between Christian Luck, Plaintiff and De-
fendant in Error, and Otis Elevator Company, a cor-
poration. Defendant and Plaintiff in Error, a mani-
fest error hath happened to the great damage of the
said Plaintiff in Error, as by complaint doth appear;
and we, being willing that error, if any hath been,
should be duly corrected, and full and speedy justice
done to the parties aforesaid, and, in this behalf, do
command you, if judgment be therein given, that
then, under your seal , distinctly and openly, you send
the record and proceeding aforesaid, with all things
concerning the same, to the United States Circuit
Court of Appeals for the Ninth Circuit, together with
this writ, so that you have the same at San Francisco,
California, within thirty days from the date hereof,
in the said Circuit Court of Appeals to be then and
there held ; that the record and proceedings aforesaid,
bein^' then and there inspected, the said Circuit Court
of Appeals may cause further to be done therein to
correct that error, what of right and according to the
laws and customs of the United States of America
should l)c done.

I

vs. Christian Luck 137

WITNESS the HONORABLE EDWARD DOUG-
LAS WHITE, Chief Justice of the Supreme
Court of the United States this 13th day of May
1912.
(Seal) A. M. CANNON,

Clerk of the District Court of the United States for
the District of Oregon.

[Endorsed] : Writ of Error. Filed May 13, 1912.

A. M. CANNON,

Clerk.

And afterwards, to-wit, on the 13 day of May, 1912,
there was duly filed in said Court, Citation on
Writ of Error, in words and figures as follows to-
wit:

[Citation on Writ of Error.]

In the District Court of the United States for the
District of Oregon.

CHRISTIAN LUCK, Plaintiff,

vs.
OTIS ELEVATOR COMPANY, Defendant.

UNITED STATES OE AMERICA,

District of Oregon — ss.
To Christian Luck, and to C. W. Eulton, his attor-
ney;— Greeting:

You are hereby cited and admonished to be and ap-
pear before the United States Circuit Court of Ap-
peals for the Ninth Circuit, at San Francisco, Cali-
fornia, within thirty days from the date hereof, pursu-
ant to a writ of error filed in the Clerk's office of the

138 Otis Elevator Company

District Court of The United States for the District of
Oregon wherein Otis Elevator Company, a coropra-
tion, is plaintiff in error, and you are defendant in
error, to show cause, if any there be, why the judg-
ment in the said writ of error mentioned should not
be corrected and speedy justice should not be done
to the parties in that behalf.

Given under my hand at Portland, in said District,
this 13th day of May, A. D., 1912.

R. S. BEAN,

Judge.

DISTRICT OF OREGON,
County of Multnomah — ss.

Due service of the within citation on writ of error is
hereby accepted in Multnomah county, Oregon, this
13th day of May, 1912, and admitted to have been
made upon me and upon plaintiff.

C. W. FULTON,

Attorney for Plaintiff.

[Endorsed] : Citation on writ of error. Filed May
13, 1912.

A. M. CANNON,

Clerk.

And afterwards, to-wit, on Monday, the 13 day of
May, 1912, the same being the 61 Judicial day of
the Regular March, 1912, Term of said Court;
Present: the Honorable R. S. BEAN, United
States District Judge presiding, the following
proceedings were had in said cause, to-vvit:

vs. Christian Luck 139

[Order Extending Time to File Record.]

In the District Court of the United States for the
District of Oregon.

CHRISTIAN LUCK, Plaintiff,

vs.
OTIS ELEVATOR COMPANY, Defendant.

Now, at this day, on motion of Mr. R. A. Leiter, of
counsel for defendant in the ahove entitled cause, and
for good cause shown, it is :

Ordered, that said defendant be and it is hereby al-
lowed sixty (60) days from this date within which to
file the transcript of record in the above entitled cause
in the United States Circuit Court of Appeals for the
Ninth Circuit.

R. S. BEAN,

Judge.
Dated May 13, A. D., 1912.

[Endorsed] : Order Extending Time. Filed May
13, 1912,

A. M. CANNON,

Clerk.

And afterwards, to-wit, on Tuesday, the 4 day of
June, 1912, the same being the Judicial day of the
Regular March, 1912, Term of said Court; Pres-
ent: the Honorable R. S. BEAN, United States
District Judge presiding, the following proceed-
ings were had in said cause, to-wit:

140 Otis Elevator Company

[Order to Certify Up Exhibits.]

In the District Court of the United States for the
District of Oregon.

CHRISTIAN LUCK, No. 3815,

V.

OTIS ELEVATOR COMPANY. June 4, 1912.

Now, at this day, it appearing that certain exhibits
introduced on the trial of this cause in this court are
of such character as to require the inspection thereof
by the United States Circuit Court of Appeals on the
writ of error from that court.

IT IS THEREFORE ORDERED, that plaintiff's
Exhibits 2 and 3 and defendant's Exhibits A. B. C and
D be transmitted by the clerk of this court, with the
record of this cause, to the said United States Circuit
Court of Appeals for the Ninth Circuit.

CHAS. E. WOLVERTON,

No.

157

In the United States

Circuit Court of Appeals

Ninth Circuit

OTIS ELEVATOR COMPANY

Plaintiff in Error

vs.

CHRISTIAN LUCK

Defendant in Error

Brief of PlaintiflF in Error

upon Writ of Error from United States District Court
for the District of Oregon

Griffith, Leiter & Allen
Attorneys for Plaintiff in Error

C. W. Fulton
Attorney for Defendant in Error

In the United States

Circuit Court of Appeals

Ninth Circuit

OTIS ELEVATOR COMPANY

Plaintiff in Error

vs.

CHRISTIAN LUCK

Defendant in Error

Brief of Plaintiff in Error

upon Writ of Error from United States District Court
for the District of Oregon

STATEMENT OP THE CASE.

This is an action for personal injuries, brought
by the defendant in error. For purposes of conven-
ience we shall, throughout this brief, designate the
parties hereto as they appeared in the District Court.

The basis of plaintiff's right of action as found in
his complaint in substance is, that on the 24th day
of February, 1912, plaintiff was employed by defend-
ant to assist in the installation of a plunger elevator,
in a building in the city of Portland, Oregon; that
in the installation of this elevator it was necessary to

dig a well some 86 feet in depth and to construct
therein a casing; that after such casing was placed
in such well and carried up from the bottom it was
necessary to fill the well around said casing with
earth and gravel, let down into the well by means of
an iron bucket attaclied to a cable ; that as this bucket
would be lowered into the well it would swing from
side to side and strike the sides of the well, or of the
casing, and unless securely fastened to said cable said
bucket would be thrown off and separated from said
cable ; that defendant carelessly and negligently used,
for the purpose of attaching the bucket to the cable,
an unsuitable and unsafe iron hook, which permitted
the bucket, when striking against the casing or well,
to slip off from said hook ; that as a result of defend-
ant's negligence in using a hook of such character the
bucket slipped off the hook and fell upon plaintiff,
who was working in the well.

In its answer, defendant denied all of the material
allegations of the complaint. Its first affirmative de-
fense was that plaintiff was a foreman in charge of
the men on this work, and also in charge of the tools,
instrumentalities and appliances used therein; that
as foreman, it was part of his duty to inspect the in-
strumentalities and appliances and to see that the
same were in good condition and repair, and safe and
suitaljle for the work; that defendant had in stock a
num[)er of hooks and other devices suitable for fast-
ening said l)ucket, from which plaintiff could, and it

was his duty to, select a suitable hook, and that plain-
tiff did select the hook in use at the time of the acci-
dent ; that if said hook was a defective or improper
appliance, plaintiff himself was negligent in select-
ing and using, or permitting the same to be used, and
that he was guilty of contributory negligence in said
respect.

The second affirmative defense was the negligence
of a fellow servant, in that the bucket was carelessly
and negligently fastened on to the hook without being
wired, and that it was permitted to fall, by reason of
the negligent manner in which the bucket had been
fastened by plaintiff's fellow servants.

The third affirmative defense was plaintiff's as-
sumption of risk; that he was thoroughly familiar
with the hook in use, fully understood that the bucket,
fastened by means of said hook to the cable, would
swing from side to side and strike the sides of the
well and the casing, and understood the likelihood of
the bucket, in so swinging and striking, to be separ-
ated from the cable, and thoroughly understood and
appreciated the hazards and dangers of performing
his work under such circumstances and conditions
with the appliances then in use.

The affirmative defenses were put in issue by
plaintiff's reply, and on March 15, 1912, a jury re-
turned into court a verdict for the plaintiff in the
sum of $7,000. Defendant brings the case to this
court on writ of error.

At the conclusion of all of the testimony offered
by the parties, defendant moved the trial court for a
directed verdict, on the ground that under the testi-
mony plaintiff assumed the risk. (Transcript of
Record, p. 113.) The motion was denied.

During plaintiff's case in chief the court per-
mitted witness H. A. Taylor, over defendant's ob-
jection, to testify in regard to an accident which hap-
pened during October or Novembei', 1908, on another
job, and also denied defendant's motion to strike
said testimony (Transcript of Record, pp. 70 to
74) ; and in instructing the jury permitted the jury
to consider said testimony as bearing upon the ques-
tion as to whether the hook was a defective one or not.
(Transcript of Record, pp. 118, 119.)

The court also declined to give certain instruc-
tions requested by the defendant, which are assigned
as error. (Transcript of Record, pp. 331 to 133.)

SPECIFICATIONS OF ERRORS

WITH

POINTS AND AUTHORITIES.

I.

The court erred in overruling defendant's motion
for a directed verdict on the ground that plaintiff as-
sumed the risk.

Assignment of Error, No. VI, Transcript of
Record, pp. 130, 113.

(a) A servant assumes the ordinary risks inci-
dent to his employment.

Chicago etc. Co, v, Shalstrom, 195 Fed., 725,

728.
Puget Sound Elec. Ry. Co, v, Harrigan, 176

Fed., 488, 491.

This includes the assumption not only of those
which he knew, but also of those which he might, in
the exercise of reasonable care, have discerned.

Puget Sound Elec, Co, vs. Harrigan, 176 Fed.,
488, 491.

(b) He also assumes the extraordinary risks and
dangers which he knows and appreciates.

Chicago etc, Co. v. Shalstrom, 195 Fed., 725,

728.

Hull V. Northern Pac. Ry. Co., 136 Pac, 153,
155.

(c) And when a defect in an appliance is known
to the employe or is so patent and obvious as to
be readilv observable to him in his work, he assumes
the risk thereof by continuing in his employment.

Katalla Co. v. Rones, 186 Fed., 30, 33-4.

Chicago etc. Co. v. Shalstrom, 195 Fed., 725,

728.

Choctaw etc. Co. v. McDade, 191 U. S., 64, 67 ;
48 L. Ed., 96, 100.

Bunker Hill etc. Co. v. Kettleson, 121 Fed.,
529, 532.

8

II.

The court erred in overruling defendant's objec-
tions to the testimony of H. A. Taylor and in over-
ruling defendant's motion to strike out said testi-
mony, and also in instructing the jury that they had
the right to consider said testimony as bearing upon
the question of whether the hook was defective or
not. (Assignments of Error, III, IV, V, VII.)

The testimony given by said H. A. Taylor and the
proceedings had in connection therewith are as fol-
lows : (Transcript of Record, pp. 70-74.)

'^Q. Mr. Taylor, where do you live?

A. Portland, 1275 East Sixth Street, North.

Q. Did you ever work for the defendant, the Otis
Elevator Company ?

A. Yes, sir.

Q. When?

A. 1908. I don't remember the month; Novem-
ber or October.

Q. In what work were you engaged at that time ?

A. Digging elevator shaft; what they term the
well.

Q. T^^lere?

A. Y. AV. C. A. building.

Q. Y.W.C. A. building?

A. Y. W. C. A. building.

Q. The Young Women's Christian Association?

A. Yes, sir.

Q. Were you working there first when Mr. TTyd(»

9

was on the job, or werie you there at any time when he
was on the job?

A. Yes, sir.

Q. Were jou there after he left the job and when
the Otis Elevator Company took it over ?

A. Yes.

Q. Did you continue to work for the Otis Eleva-
tor Company?

A. Yes, sir.

Q. Now, after that — after Mr. Hyde had left, the
Otis Elevator Company took the work over; what
were you doing for it ?

A. I was digging the shaft.

Q. Digging in the shaft. Did you, at that time,
notice how the bucket was connected with the cable —
the bucket which carried the dirt ?

A. Yes, sir ; the bucket was connected with what
is termed a pigtail hook.

Court: What kind — pigtail?

A. Pigtail hook ; yes, sir.

Q. Was it similar to that ?

A. Yes, just about the kind of a hook.

Q. Now, while you were working there in the
well, state whether or not any accident occurred, and
if so, what?"

To which question counsel for defendant objected
as being incompetent, immaterial and irrelevant.

*^ Court: Well, I suppose if it occurred through
the use of this hook, it would be competent to show
that the company knew it was an imperfect hook.

10

Mr. Fulton: I propose to show that practically
the same accident occurred there, and that it was
communicated to Mr. Shepard, the superintendent
of the company."

AVhereupon, the court overruled defendant's ob-
jection, to which ruling defendant then and there ex-
cepted, which exception was allowed, and the witness
further testified :

'^A. A bucket fell 53 feet there.

Q. What say?

A. I was working in the bottom of the shaft,
about 53 feet from the top of the basement of tliC Y.
W. C. A. building, and a bucket came down on me.

Q. Well, how did it come down? How did it
happen to come down — slip off the hook?

A. It slipped off the hook.

Q. As it was descending into the v/ell?

A. Yes, sir.

Q. What did it do to you?

Mr. Leiter: I object to that as incompetent.

Court: The only question is whether it slipped
off the hook.

Mr. Fulton: I don't insist on that if objected to.

Court: The extent of this man's injury has no
bearing on this case; it is only competent for the
purpose of showing that the company, or tending to
show that the company knew it was an improper
hook.

Q. Do you know whether Mr. Rhepai-d knew that

11

the bucket came off at that time when you were in
the well ?

A. No, sir, I do not.

Q. What say?

A. I do not.

Q. Did you have any talk with him about it ?

A. No, sir. I had a talk with the man that was
working on top of the shaft, taking care of the bucket
— unhooking and hooking the hook in the bail.

Q. What say?

A. I had a talk with the man that was hooking
and unhooking the hook from the bucket ; in order to
dump the bucket he had to unhook the hook.

Q. Never mind what he said. I understand you
had a talk also with Mr. Shepard about the injury
you received at that time. Did you have any talk
with him about the injury you received at that time?

A. The injury that I received at that time —

Mr. Leiter: I object, may it please the court, as
incompetent, immaterial and irrelevant.

Mr. Fulton: I think it would tend — it is not
competent for the purpose of showing injury.

Court: No, but for the purpose of bringing
knowledge home to the company of the accident.

A. I told Mr. Shepard at the time that I wanted
to be sure the man understood how to hook the hook
in there. I didn't like to go in the shaft and put my
life in danger at the bottom of that shaft with a man
who didn't know anything about the hook.

Q. Was that after the bucket came off ?

12

A. No, sir, before the bucket came off.

Q. I mean after the bucket came off ?

A. No, sir, not that I remember.

Q. I was mistaken ; I thought you had. That is
all."

Whereupon, counsel for defendant moved that all
of the testimony of said witness H. A. Taylor in re-
gard to the falling of the bucket be stricken out,
because counsel for plaintiff had failed to show that
defendant had any knowledge of the occurrence —
which motion was overruled, to which ruling defend-
ant then and there excepted, which exception was al-
lowed.

In charging the jury the court referred to
Taylor's testimony and the effect thereof in this
manner: (Transcript of Record, pp. 118-119.)

*' There has been evidence introduced tending to
show that some time before this accident, and while
this same hook and line were being used in lowering
a bucket into the elevator shaft, that the bucket fell
and struck one of the workmen. That evidence is
only proper, and could only be considered by you for
the purpose or as it may bear upon the question as to
whetlier the hook was a safe and proper hook. There
is no evidence here that the defendant company knew
of that accident, or was advised of it — no direct evi-
dence that it knew of that accident or was advised of
it, and the evidence could only be considered as it may
bear upon the question as to whether the liook was a
defective one or not."

13

To the giving of this instruction defendant ex-
cepted. (Transcript of Record, p. 124.)

This evidence was irrelevant because it was too
remote in point of time, because there was no showing
of similarity of circumstances or conditions, and be-
cause it failed to show knowledge on the part of
defendant of the condition of the appliance.

§ 7779, VI Thompson on Negligence.

26 Cyc, p 1429.

§ 163, Jones on Evidence (2d ed.).

§ 185, 1 Elliott on Evidence.

§ 2506, 3 Elliott on Evidence.

Evidence of prior conditions is inadmissible.

(a) Where the conditions are not shown to have
been the same as at the time of the accident.

Willson V, Logan, 139 111. App., 204.

Powers V. Boston etc. Co,, 175 Mass., 466; 56
N. E., 710.

Keatley v. III. etc. Co., 94 Iowa, 685 ; 63 N. W.,
560.

Root V. Kansas etc. Co., 195 Mo., 348 ; 92 S. W.,
621.

(b) Where such prior condition is not shown to
have been connected with the cause of the accident.

Sugar Creek etc. Co. v. Peterson, 111 111., 324 ;
52 N. E., 475.

14

(c) On accoimt of lapse of time, where condi-
tions are not the same as at the time of the accident.

Steelier etc, Woi^ks v, Steadman, 78 Ark., 381 ;
94 S. W., 41.

Little Bock etc, Co, v. Eubanks, 48 Ark., 460 ;
3 S. W., 808.

(d) Where the defendant had no notice thereof.
Fisher v, Nubian etc, Co,, 60 111. App., 568.
Murphy v. Stanley, 136 Mass., 133.

(e) As presenting collateral issues.
Whitney v. Gross, 140 Mass., 232; 5 N. E., 619.

Calcaterra v. lovaldi, 123 Mo. App., 347 ; 100

S. W., 675.
Parker v, Portland Pub, Co., 69 Me., 173.
Muller V, Hale, 138 Cal., 163; 70 Pac, 81.

And evidence of prior accidents is inadmissible,
(a) Where the conditions were not the same.
Sherman v, Kortright, 52 Barb., 267.
Vander Velde v, Leroy, 140 Mich., 359; 103

N. W., 812.
Overcash v, Charlotte etc, Co., 144 N. C, 572 ;

57 S. E., 377.
Gustafson v. Young, 91 App. Div., 433; 86

N. Y. Supp., 851.
Barrett v, Hammond, 87 Wis., 654; 58 N. W.,

1053.

16

(bj Where notice of same has not been brought
home to defendant.

Bridger v. Asheville etc, Co,, 27 S. C, 456;

3 S. E., 860.
Martinez v, Planel, 36 Cal., 578.
Roche V, Llewellyn etc, Co,, 140 Cal., 563; 74

Pac.,147.
Jacques v, Bridgeport etc, Co,, 41 Conn., 61.

(c) As presenting collateral issues.
Davis V, 0, & C, R, R, Co,, 8 Or., 172.
Phillips, V, Willow, 70 Wis., 6; 34 N. W., 731.

III.

The court erred in refusing to instruct the jury
at the request of defendant as follows :

*^If you find that the defendant was negligent as
charged in the complaint, before plaintiff can recover
in this action, you. must further find that defendant's
negligence was the proximate cause of the accident,
that is — that cause which conduced directly to the
accident, and without which the accident would not
have occurred."

Assignment No. VIII (Transcript of Record, p.
131).

Defendant was not liable unless its negligence was
the proximate cause of plaintiff's injury. The re-
quest was proper and was not covered by the general
charge of the court.

ARGUMENT.
I.

The law as it relates to the doctrine of assump-
tion of risk is so well defined that it seems unneces-
sary to cite many cases on this point. A very con-
cise statement of these principles is found in the case
of Chicago etc, Co, v, Slialstrom, 195 Fed., 725, from
which we quote at page 728 :

(1) A servant by entering and continuing in the
emplo}TQent of a master without complaint assumes
the ordinary risks and dangers of the emplojnnent
and the extraordinary risks and dangers thereof
which he knows and appreciates. CJioctaw, Okla-
lioma & Gulf R. R, Co, v. McDade, 191 U. S. 64, 67,
24 Sup. Ct. 24, 48 L. Ed. 96; St. Louis Cordage Co.
V, Miller, 126 Fed. 495, 508, 61 C. C. A. 477, 490,
63 L. R. A. 551; Glenmont Lumber Co, v, Roy, 126
Fed. 524, 528, 61 C. C. A. 506, 510; Burke v. Union
Coal & Coke Co,, 157 Fed, 178, 180, 84 C. C. A. 626,
628.

(2) Although the risk of the master's negligence
and of its effect unknown to the servant is not one
of the ordinary risks of the emplojonent which he
assumes, yet if the negligence of the master or its
effect is knoAvn and appreciated by the servant, or is
obvious, or **so patent as to be readily observed by
him by the reasonable use of his senses, having in
view his age, intelligence, and experience" (United
States Smelting Com^miiij v. Parry, 166 Fed. 407,

17

410, 92 C. C. A. 159, 162), and he enters and con-
tinues in the employment without objection, he elects
to assume the risk of it, and he cannot recover for
the damages it causes (Texas & Pacific Ry. Co. v.
Archibald, 170 U. S. 665, 672, 18 Sup. Ct. 777, 42 L.
Ed. 1188 ; Choctaw, Oklahoma & G, R, R, Co, v. Mc-
Dade, 191 U. S. 64, 68, 24 Sup. Ct. 24, 48 L. Ed. 96 ;
Burke v. Union Coal & Coke Co., 157 Fed. 178, 181,
84 C. C. A. 626, 629 ; Lake v. Shenango Furnace Co.,
160 Fed. 887, 892, 88 C. C. A. 69, 74).

(3) When a defect is obvious or ^^so patent as
to be readily observed by a servant by the reasonable
use of his senses, having in view his age, intelligence
and experience," and the danger and risk from it
are apparent, he cannot be heard to say that he did
not realize or appreciate them. Utah Consol. Min.
Co. V. Bateman, 176 Fed. 57, 63, 99 C. C. A. 365, 371,
27 L. R. A. (N. S.) 958; St. Louis Cordage Co. v.
Miller, 126 Fed. 495, 501, 509, 511, 61 C. C. A. 477,
483, 491, 594, 63 L. R. A. 551 ; Glenmont Lumber Co.
V. Roy, 126 Fed. 524, 528, 61 C. C. A. 506, 510; Lake
V. Shenango Furnace Co., 160 Fed. 889, 892, 88 C. C.
A. 69, 72.

(4) No duty rests on the master to warn a ser-
vant of defects, risks, or dangers that are *^so patent
as to be readily observed by him by the reasonable
use of his senses, having in view his age, intelligence
and experience." Bohn Mfg. Co. v. Erickson, 55
Fed. 943, 946, 5 C. C. A. 341, 344; Glenmont Lumber

18

Co, V, Boy, 126 Fed. 524, 528, 529, 61 C. C. A. 506, 510,
511 ; King v, Morgan, 109 Fed. 446, 449, 48 C. C. A.
507, 510 ; Railroad Co, v. Miller, 104 Fed. 124, 43 C.
C. A. 436; Mississippi Biv, Log, Co, v, Schneider,
74 Fed. 195, 197, 20 C. C. A. 390, 392 ; Lake v, Shen-
ango Furnace Co,, 160 Fed. 889, 892, 88 C. C. A. 69,
72.

(5) Assumption of risk rests upon the maxim,
^'Volenti non jit injuria," and upon the contract of
emplo}Tnent. It rests upon the principle that no
legal injury can be inflicted upon one who willingly
assumes the known or obvious risk of it, and hence
it includes the risk of known or obvious defects and
dangers which the master or the foreman directs the
servant to incur during the employment, for the lat-
ter is as free to decline to obey such an order as he is
to decline to take or to continue in the employment,
and where he knows and appreciates the defect and
danger as well as the master or the foreman, he be-
comes subject to the maxim, upon the willing no legal
injury can be inflicted. The order or direction of
the master, or of the foreman, to the servant to work
at a specified place, or with certain appliances, does
not release the servant from his assumption of the
apparent risks and dangers of defects in the place,
structure, or appliances that arc known to him, or
are ^* so patent as to be readily observed by the reason-
able use of his senses, having in view his age, intelli-
gence, and experience." Railroad Co. v. Jones, 95

19

U. S. 439, 443, 24 L. Ed. 506 ; Kean v. Detroit Copper
& Brass Mills, m Mich. 277, 33 N. W. 395, 400, 11
Am. St. Rep. 492; Stuart v. New Albany Mfg, Co,,
15 Ind. App. 184, 43 N. E. 961, 964, 965 ; Paule v.
Florence Mining Co., 80 Wis. 350, 50 N. W. 189, 191 ;
Showalter v. Fairbanks, Morse <& Co,, 88 Wis. 376,
60 N. W. 257, 258 ; Toomey v. Eureka Iron & Steel
Works, 89 Mich. 249, 50 N. W. 850; Linch v. Manu-
facturing Co,, 143 Mass. 206, 210, 9 N. E. 728 ; Brad-
shaw's Adm'r, v. Railway Company (Ky.), 21 S. W.
346; O'Connell v. Clark, 22 App. Div. 466, 468, 48 N.
Y. Supp. 74 ; Davis v, Detroit & Milwaukee R, R, Co.,
20 Mich. 105, 127, 4 Am. Rep. 364 ; Wilson v, Tremont
& Suffolk Mills, 159 Mass. 154, 155, 34 N. E. 90 ; Bur-
lington & C, R. Co. V. Liehe, 17 Colo. 280, 285, 29 Pac.
175, 176.

(6) The agreement of the servant to assume the
ordinary risks of his employment and the extra-
ordinary risks thereof that are known to and appre-
ciated by him inheres in and is an inextricable
part of his contract of employment, and when that
is proved or admitted the assumption of these risks
is proved, and no further pleading or proof on the
part of the defendant is necessary to establish it.
Malme v. Tlielin, 47 Neb. 686, m N. W. 650; Glantz
V, Chicago, B, & Q. R, Co,, 87 Neb. 60,, 127 N. W. 221 ;
Evans Laundry Co. v. Crawford, ^7 Neb. 153, 93 N.
W. 177, 94 N. W. 814 ; St. Louis Cordage Co. v. Mil-
ler, 126 Fed. 495, 501, 61 C. C. A. 477, 483, 63 L. R. A.
551.

20

(7) When the uncontradicted evidence discloses
the fact that the defects in the place, structure, or
appliances were '*so patent as to be readily observed
by the plaintiff by the reasonable use of his senses,
ha^dng in view his age, intelligence, and experience,"
and the risks and dangers from them were apparent,
and he entered upon or continued in the service with-
out complaint, his assumption of the risk is con-
clusively established, and the court should instruct
the jury to return a verdict for the defendant. Glen-
mont Lumber Co, v. Roy, 126 Fed. 524, 528, 61 C. 0.
A. 506, 508; Federal Lead Co. v, Stvyers, 161 Fed.
687, 690, 88 C. C. A. 547, 550; Stetvart v. Brune, 179
Fed. 350, 355, 102 C. C. A. 534, 539.

This Circuit holds to the general rule in Katalla
Co. V. Rones, 186 Fed., wherein the court, at page 33,
states :

** There exists an exception to the general rule
that an employe may assume that reasonable care
will be observed by his employer for his protection,
which is that where a defect in machinery is known
to an employe or is so patent and obvious as to be
readily observable while engaged in his work, and he
continues in the use and operation thereof notwith-
standing the defect, he assumes the risk and hazard
attending such ydse. The reason for the exception is
that having such knowledge or possessed of the ready
means of acquiring it and shutting his eyes to pal-
pable conditions, he elects to engage in the service,

21

and therefore to undergo the hazard on his own ac-
count."

The assumption extends not only to the ordinary
risks known to the servant but also to ^Hhose which
he might, in the exercise of reasonable care, have
discerned": Puget Sound etc, Co. v, Harrigan, 176
Fed. at 491. And '^full opportunity to observe the
conditions making the employment dangerous" is
equivalent to knowledge and the resulting assump-
tion : Bunker Hill etc, Co, v, Kettleson, 121 Fed. at
532.

There were several points of conflict in the testi-
mony. Luck claimed he was a mechanic merely
(Transcript, p. 28) earning 371^^ cents an hour or
$3.50 per day (Transcript, p. 43), and after the acci-
dent he was appointed foreman at $4.00 per day
(Transcript, p. 57).

Defendant claimed that Luck was a foreman
(Transcript, pp. 75, 85, 93) earning 50 cents an hour,
or $4.00 for a day's work of 8 hours (Transcript, p.
75) and his wages continued the same afterwards as
before (p. 76). There was also some conflict as to
Luck's authority and as to what he did toward se-
lecting and ordering material. It was undisputed,
however, that Luck kept the time, turned in the slips,
signed the same above the word ^ ^foreman," drew
higher pay than any other man on that job and
worked longer hours as a rule than any other man on
the work, reporting earlier and working later. He

22

was the only mechanic on that work and the others
were helpers to him. (Transcript, p. 91.)

He started on this job the day after Thanksgiv-
ing, 1909, and worked constantly until the accident
on February 24, 1910, but not on the same hole.
(Transcript, p. 45.) He had worked as a mechanic
for defendant for four years. In the construction
of plunger elevators, in addition to this job, he had
worked for two weeks on the Y. M. C. A. building.
During the three months on this job, he took his turn
in the well (Transcript, pp. 44-45) and worked all
over the place.

We quote extracts from plaintiff's testimony
concerning the hook.

^^Q. But the same hook to fasten the different
kinds of buckets to the cable would be used, both in
hauling it out and for lowering the buckets?

A. Yes, sir.

Q

pose,
A

Q
A

Q

A

Q

A

Q

A

Well, you had seen that hook there, I sup-
had you not.
What is that?

You had seen the hook there ?
Have seen the hook ?
You had seen the hook, had vou not?
Yes, sir, the hook was used there all the time.

Well, you had seen it used, I mean?
Well, we had used it there right along, yes.
You had used it yourself, had you not?
Well, I guess I had.

23

Q. Well, don't you know whether you had or
not?

A. I have put it on the bucket the same as any-
one else.

Q. You have put it on the bucket ?

A. Yes, sir.

Q. The same as anyone else working there ?

A. Yes, sir.

Q. And, in the doing of that work, it would be
necessary to do that quite often, would it not ?

A. Every bucket.

Q. Every bucket?

A. Yes, sir.

Q. So that during the time you were working
there you knew what kind of hook it was, did you
not?

A. I never knew what they called it.

Q. Never knew what they called it ?

A. No, sir, never seen a hook like that before.

Q. Did they have a hook like that on the Y. M.
C. A. building?

A. Yes, we used that.

Q. Used the same kind of a hook on the Y. M.
C. A. job?

A. The same hook.

Q. The same hook?

A. Yes.

Q. And you had worked on that job over there,
had you?

A. Yes, sii', about ten days or two weeks, I think.

24

Q. And had used this same hook over there ?

A. Yes, sir." (Transcript, pp. 45-47.)

^^Q. Well, as a matter of fact, you considered
the hook you Avere using as perfectly safe, didn't
you?

A. Yes, sir, I thought it was all right.

Q. You used it for several months there, did you
not?

A. Yes, sir.

Q. Used the same hook on the Y. M. C. A. build-
ing?

A. Yes, sir.

Q. And you used the same hook on the Olds,
Wortman & King building?

A. Yes, sir.

Q. Not only to haul buckets of earth out of the
well, but also to lower them into the well ?

A. Yes, sir.

Q. And you had worked there continually during
all that time, and saw the hook, and saw how it be-
haved, and you considered it safe and proper, did
you not ?

A. Well, I couldn't see how it behaved.

Q. Well, the bucket didn't fall on you, did it?

A. Well, that don't say how it behaved.

Q. Well, if you had considered it an unsafe ap-
pliance you would have remonstrated about it,
wouldn't you?

A. You will have to read that over again.

25

Q. If 3^ou had considered it an unsafe hook, yon
would have kicked about it, wouldn't you?

A. I think I would.

Q. You had a right to do that, didn't you?

A. Yes, sir.

Q. Did you ever complain about that to Mr.
Shepard ?

A. No, sir.

Q. Or to anybody else ?

A. Not that I know of.

Q. And you knew that if this prong wasn't high
enough, if the bucket should happen to strike the
casing, or some other obstructions, the bail might slip
out, might it not ?

A. I guess it might. That is what it done this
time.

Q. Sure, and you knew that, didn't you?

A. Never stopped to consider that.

Q. You don't have to be a mechanic to know
that, do you ?

A. Got to be better than a mechanic to decide
that.

Q. How?

A. You would have to be better than a mechanic
to.

Q. Wouldn't anybody, Mr. Luck, know that if
this hook was of the character described by you, that
the slightest knock on the bottom of the bucket so as
to release — so as to put any slack there, would cause
the bail of the bucket to slip out of that hook?

26

A. Well, I look at it this way: Mr. Shepard
had that hook made, and that was the hook that was
going to be nsed there, and I thought he knew every-
thing about it — that the hook was safe.

Q. But you also knew enough about it to know
the character of work that was being done there,
didn't you?

A. I knew the character of work that was being
done.

Q. And you knew the likelihood of the bucket
striking against the side of the well, or against the
bail, didn't you?

A. Well, sometimes it does it.

Q. That wasn't an unusual occurrence was it,
Mr. Luck? .

A. Oh, no, it would scratch. Sometimes you
would have some trouble with it striking some places,
owing to how close that casing comes out to the cen-
ter of the hole. Sometimes there wouldn't be hardly
room enough to get the bucket through.

Q. And the bail of the bucket was about five-
eighths inches in diameter, wasn't it?

A. About, yes.

Q. And it was of iron or steel, wasn't it?

A. It was of iron.

Q. Of iron. So that there would be no give to
it, would there?

A. The only time there would be any give to it
would 1)0 when it would strike something.

27

Q. "When it would strike something there might
be some play in it.

A. Yes, sir, the load in it was liable to draw the
sides together — a heavy load like that.

Q. And in doing that, the blow might be enough
to jump out of this hook?

A. No, sir, I don't think so.

Q. Well, it must have been, because as you say
it did it on this occasion?

A. Well, it hit then." (Transcript, pp. 53-56.)

^*Q. Now, in your direct examination, you said
that you never had your attention called to this hook.
As a matter of fact you had seen it there every day,
had you not ?

A. Using it there every day.

Q. Both fastening the bucket to it, and unfasten-
ing the bucket from it?

A. Well, it was not that we took the cable off.
We never took the cable off the hook, it was just
taking the hook off the bucket — that was all.

Q. The hook at all times was fastened to the
cable ?

A. Yes, sir, that is, fastened on there with
Crosby clips.

Q. But, in doing the work, it would be necessary
very frequently for the bucket to be taken off the
hook ?

A. Yes, sir, it was taken off practically every
load.

28

Q. And sometimes you would take it off and
sometimes someone else would take it off ?
A. Yes, sir.
Q. Sometimes you were down in the hole, and

at other time somebody else ?

*/

A. Yes, sir.

Q. And during all of the time that you had used
this hook you never made any complaint about its
being unsuitable?

A. No, sir.

Q. And, as a matter of fact, you didn't think
that it was unsuitable ?

A. I didn't catch that question there.

Q. I say you really didn't think it was unsuit-
able, because you never made any kick about it.

A. Well, I thought it was all right.

Q. And the hook was perfectly in plain sight so
you could have seen it while it was being used there ?

A. Plain sight there all the time.

Q. And, as a matter of fact, you did see it ?

A. Couldn't help but see it.

Q. And you knew that if the bucket would strike
against something, so as to be jarred loose from the
hook, it might fall down into the hole ?

A. That never crossed my mind.

Q. Well, you probably didn't think of that spe-
cific thing, but then you imderstood that, didn't you?

A. Well, I didn't think it would come off of
there.

29

Q. But you knew that if it did come off the
bucket necessarily would fall?

A. That's a fact.

Mr. Pulton : Yes, most of us would know that.

Q. And you understood also that if the bucket
fell while you were down in the well there, and it
struck you, you might be injured?

A. Yes, sir, found that out by experience.

Q. Well, you knew that beforehand, too, didn't
you ?

A. A question like that never crossed my mind."
(Transcript, pp. 58-60.)

The risk of the bucket revolving or swinging so
as to strike the walls of the excavation or of the
casing in the hole was plainly one of the ordinary
risks of plaintiff's work in the well. So, also, was
the likelihood of the bail of the bucket being jarred
from the hook by reason of such contact. Further-
more, plaintiff not only had full opportunity to ob-
serve the conditions which made this work danger-
ous, but the circumstances were such that in the exer-
cise of any sort of reasonable care, plaintiff should
have discovered any and all dangers or defects in
the hook in use. He was more familiar than any one
else with the exact character of the hook and with
the service to be performed by it and the conditions
under which it was to be used. He had used it con-
tinuously for three months. The situation and con-
ditions were open and obvious. He was an expei'i-

30

enced workman, and where lie had such actual knowl-
edge of the hook and the defect, if any, therein, and
where the alleged defect was so open and obvious and
readily discernible, as shown by the testimony, plain-
tiff cannot be heard to say that he did not appreciate
the risk.

II.

The accident in question occurred on February
24, 1910, on the Olds, Wortman & King building.
The occurrence testified to by Taylor happened in
October or November, 1908, one year and three or
four months previously and on the Y. W. C. A. build-
ing. There was no testimony introduced showing
any similarity of conditions or appliances, other than
that a hook was then used similar to the one in use
when Luck was injured. Hyde testified that in Octo-
ber or November, 1908, he had the particular hook
used when Luck was injured made for work on the
Y. W. C. A. building, and at that time it was a per-
fectly safe hook, known as a ^^ pigtail hook." (Tran-
script, p. 65.) The inference from the testimony of
Hyde and Taylor is that the hook made by Hyde was
in use at the time testified to b}^ Taylor and also at
the time of Luck's injury. Its condition at the latter
date, however, was different from what it was in
1908.

The testimony of Taylor was offered for the pur-
pose of showing that practically the same accident
occurred before and that it was communicated to iho

31

defendant's superintendent. (Transcript, p. 72.)
And the court admitted it as being competent to show
that the company knew it was an improper hook.
(Transcript, p. 72.) Counsel wholly failed to show
that the defendant had knowledge of the occurrence
of the accident. Taylor's conversation with the
superintendent was had prior to the occurrence of
the accident and was directed entirely to the com-
petency and fitness of the man above, whose duty it
was to fasten the bucket onto the hook. (Transcript,
pp. 73-74.)

The court declined to strike out the evidence and
instructed the jury that there was no direct evidence
that defendant had knowledge of the Taylor accident
but that the jury could consider his evidence as bear-
ing upon the question as to whether the hook in use
at the time of plaintiff's injury was a safe and proper
or a defective hook. (Transcript, pp. 118-119.) In
other words, the testimony was admitted for the pur-
pose of showing knowledge on the part of defendant
that this hook was or might be an imperfect or im-
proper hook, and it was kept in the case for the pur-
pose of being considered by the jury in order to en-
able them to determine if the hook furnished at the
time of Luck's injury was a safe and proper one —
two entirely distinct purposes.

We contend that this testimony was irrelevant
because there was no showing of similarity of condi-
tion or circumstances. In fact, the testimony dis-

32

closed that the hook was in very different condition
than from what it was when the accident the jury
were concerned with occurred. Furthermore, the
time was entirely too remote. What happened fifteen
months before with an appliance in a different con-
dition and under circumstances of operation which
may have been and probably were entirely dissimilar,
certainly could not aid the jury in determining
whether or not the defendant failed to exercise ordi-
nary care at the time of this accident in furnishing
the hook then used. On the contrary, the undoubted
effect of the introduction of this evidence was to con-
fuse the minds of the jury, distract their attention
from the main issue, and, resulting from counsel's
impassioned comments thereon, prejudice the defend-
ant before the jury.

Evidence of prior accidents may, under proper
circumstances, be sometimes admissible to charge
defendant with notice of unsafe conditions. The
mere fact of prior accidents is not sufficient to estab-
lish unsafe conditions or appliances and evidence of
them is therefore not admissible unless coupled with
evidence of actual conditions. Here there was not
only failure to show knowledge, as promised, but
there also was a total lack of evidence of actual con-
ditions then existing.

We have, then, a case of an accident occurring
some fifteen months before at a different place with
an appliance in a different condition under unex-

33

plained circumstances and under undisclosed condi-
tions, without any notice or knowledge thereof in the
possession of defendant. For all that appeared, the
bucket may have come off the hook on that occasion
by reason of the manner in which a helper adjusted
the hook, or for some other unknown reason. This
testimony is then received for the purpose of show-
ing knowledge on defendant's part that the hook was
improper. The testimony failing in this it is then
retained before the jury and they are invited to con-
sider said occurrence ^^as it may bear upon the ques-
tion as to whether the hook was a safe and proper
hook" — the ultimate fact in issue.

That is to say, from the occurrence of the Taylor
accident the jury were in effect given the right to
infer that the hook used was a defective appliance.
We know of no case which goes so far.

Even if the testimony were admissible to show
defendant's knowledge of a defective appliance (it
wholly failed to do this) and defendant had actual
knowledge of the occurrence of the accident, it would
only have been proper for the court to have in-
structed the jury that such testimony could be con-
sidered by them in determining whether or not de-
fendant having such knowledge exercised ordinary
care to provide plaintiff a reasonably safe appliance.
It still would be improper to permit the jury to find
the hook a defective one from the fact of defendant's
knowledge of a prior accident. The admissibility of

34

the testimony rests in knowledge. The fact of a de-
fective hook must be found in independent evidence
bearing directly upon the device itself. Such a find-
ing cannot be based upon collateral evidence of this
character. Defendant's knowledge goes merely to
illustrate its care under the particular circumstances.

Furthermore, the character and construction of
this hook were as simple as can well be imagined.
Its construction, whether safe or unsafe, was open
to the observation and understanding of any man of
ordinary sense. There was, therefore, no occasion
for evidence of other accidents to show that it was
unsafe. Edtvards v, Barier etc, Co.^ 92 Mo. App.,
226.

On this point we quote from some of the writers
as to the admissibility of evidence of this character.

*^As a general rule, in an action by a servant for
personal injuries, other accidents or acts of negli-
gence are inadmissible in evidence to show negli-
gence on the part of defendant, unless sho^Ti to be
closely connected with the accident complained of
as to time, place and circumstances." 26 Cyc, p.
1429.

** Evidence of similar accidents from the same
cause, though of slight probative value, is sometimes
admitted as tending to prove the dangerous character
of the machine. The better rule allows such evidence
on the question of the master's knowledge of the con-

35

dition of an appliance, and for that purpose only."
§ 7779, VI Thompson on Negligence.

**In actions for negligence the question often
arises as to what extent facts apparently collateral
to the issue may be received. For example, in actions
for personal injury on a highway it may become
relevant to show, for the purpose of proving notice
on the part of the municipality, that other persons
have received injuries at the same place. There is a
class of decisions in which it is held that in suits for
injuries caused by defective streets it is relevant for
the plaintiff to prove other similar accidents for the
purpose of showing the dangerous character of the
street. Although this view seems to be sustained by
numerous cases, it is open to the obvious objection
that it permits the introduction of numerous col-
lateral issues whereby the attention of the jury may
be diverted from the main question. The contrary
view has the support of very high authority and, in
the opinion of the author, is sustained by the better
reasoning." § 163, Jones on Evidence, 2d ed.

^'The question as to the relevancy and admissi-
bility of evidence apparently collateral, frequently
arises in negligence cases. For the purpose of show-
ing the existence of the defect complained and the
material circumstances, it is admissible to prove the
condition of the place, or machinery; where it has
remained unchanged, for some time before and after
the accident. But the time must not be too remote.

36

* * * Evidence of other accidents at the same
place has also been received for the same purpose
or as tending to show the dangerous character of the
place, but we think the better rule is, that such evi-
dence is admissible only to show notice or the like."
§ 185, 1 Elliott on Evidence.

'^ There is conflict among the authorities as to
whether evidence of previous similar accidents at the
same place is admissible, but we think the better rule
is that such e^ddence is not admissible, ordinarilv at
least, to prove negligence at the time in question.
But it has been held in some cases that evidence of
the happening of prior accidents at the same place,
in a sidewalk for instance, tended to show that tested
by actual use it had been demonstrated to be unsafe,
and much the same view has been taken in a few cases
in regard to machinery. So, in a few instances, it
has been held competent to show, on the other hand,
that no such accident had happened before. But,
while evidence of prior accidents might have been
admissible in some of these cases on the question of
notice, it raises too many distinct and collateral is-
sues, and evidence that there were or were not prior
accidents is of very little if any probative value with-
out a knowledge of all the facts and conditions at
such other times, and is usually unnecessary because
the facts in regard to the condition and circumstances
at the time in question are susceptible of direct
proof." § 2506, 3 Elliott on Evidence.

37

Under none of the cases is testimony of this char-
acter admitted to show negligence. That was the
effect of the testimony here admitted under the
court's instruction. To justify its admission on any
theory, there should have been a showing of similar-
ity of working conditions. Here there was none. No
testimony was offered to show that the dimensions of
the well were the same or the conditions were ma-
terially the same or the working methods were in any
way similar. This was all left to the imagination.
In the absence of such a showing the testimony was
not admissible, even to show knowledge. We con-
fidently assert that the court's rulings in respect to
this testimony, including his instruction, were er-
roneous.

III.

An essential element of the right to recover is
that the defects complained of should have been the
proximate cause of the injury. 20 Ency. Law (2d
ed.) 78. Under the testimony there was some room
for doubt as to whether the accident was caused by
reason of a defective appliance or b}^ reason of the
manner in which the hook had been fastened to the
bucket or by reason of the manner in which the bucket
was being lowered. The request made by defendant
was a correct statement of the law, and nowhere in
his charge did the court either define proximate cause
or state to the jury that defendant would be liable
onh^ in the event that defendant's negligence, if

38

found, was the direct or proximate cause of the in-
jury. Under these circumstances the refusal of said
instruction was error.

For the reasons herein urged, error was commit-
ted and the judgment should be reversed.

Respectfully submitted,

Geiffith, Leiter & Allen,
Attorneys for Plaintiff in Error.

■^^--^ifv^

In the United States

Circuit Court of Appeals

Ninth Circuit

OTIS ELEVATOR COMPANY

Plaintiff in Error
vs.

CHRISTIAN LUCK

Defendant in Error

Brief of Defendant in Error

Upon Writ o* Eppoi* from United States Distriot Court
for the District of Oregon

C. W. Fulton

Attorney for Defendant in Error

Griffith, Leiter & Allen

Attorneys for Plaintiff in Error

FILED

in the United States

Circuit Court of Appeals

Nintti Circuit

OTIS ELEVATOR COMPANY

Plaintiff in Error
vs.

CHRISTIAN LUCK

Defendant in Error

Brie* of Defendant in Error

Upon Writ of Error from United States District Court
for the District of Oregon

STATEMENT OF THE CASE.

This is an action for personal injuries, prosecuted by
Christian Luck against the Otis Elevator Co. For con-
venience, I will follow the example of counsel for plain-
tiff in error and refer to the parties as they appeared in
the District Court.

The complaint alleges, and the evidence established,
that plaintiff was in the employ of defendant, as a me-
chanic in the work of installing elevators. It appeared
by the evidence that two classes of elevators were in-
stalled, viz.: electric and plunger elevators. When the
accident, resulting in the injury complained of occurred,
they were installing a plunger elevator. It appeared

that comparatively few plunger elevators were installed,
most of those installed being the electric type. Plaintiff
at the time of the accident had been in defendant's em-
ploy about four years, but during that time only two
plunger elevators had been installed by defendant,
namely: one in the Young Women's Christian Associa-
tion building and one in the Young Men's Christian
Association building, in Portland, Oregon. In the in-
stallation of a plunger elevator it was necessary to dig a

hole or well for the shaft. The well woud be as deer) as

, J.

the shaft was to be long; would be three feet wide one
way and three feet 6 inches the other. When the well
had been sunk the required depth, a sheet iron casing
about fifteen inches in diameter would be erected in the
center and then the earth would be filled in around it,
the well being dug simply to enable them to install the
casing.

On the 24th of February, 1910, plaintiff, in the
course of his employment was at the bottom of the
well, which, at that time, had been filled up to within
about thirty feet of the top and the work of filling it up
was in progress, and for that purpose the earth was
let down in a bucket, which, when filled, weighed about
500 pounds. The bucket was carried by a cable attached
by a hook. In descending the bucket was liable to
swing against the sides of the well or strike the casing.
At the time in question, the bucket, filled with earth,
was being let into the well ; it struck the top of the casing
and was thereby separated from the hook and fell from
the top of the casing, a distance of about 12 feet, upon
plaintiff, whereby his spine was permanently injured,
several of the vertebrae being crushed. The negliofence
charged was that the hook provided and employed for

3

attaching the bucket to the cable, was unsuitable and
not reasonably safe for the purpose. The hook em-
ployed was termed a "pig tail hook." It was made of
iron and the end which was designed to attach to the
bucket was twice coiled, quite similar to the tail of a well-
conditioned pig. Into these coils the iron handle or bail
of the bucket was dropped. When the bucket was ar-
rested in its descent by striking the sides of the well or
the top of the casing, the hook was liable to become
detached from the bucket and the latter would then,
of course, drop with its load to the bottom, and that is
what occurred on the occasion in question.

The answer of defendant averred three defenses,
namely :

1. That plaintiff was foreman on the work and had
the selection of all tools and instrumentalities, including
this hook.

2. That the accident was by reason of the negli-
gence of a fellow servant, in carelessly and improperly
connecting the hook with the bucket and

3. That plaintiff was familiar with and knew the
unsafe nature of the hook, yet continued without pro-
test to work under it, and thereby assumed the risk.

These affirmative defenses were denied in the reply.
The jury returned a verdict for $7,000.00.

POINTS AND AUTHORITIES.

I.

An exception to a failure of a trial judge to give a
requested instruction, must point out the particular re-
quest to which the exception is directed.

Connecticut Life Ins. Co. vs. Union Trust Co.,
112 U. S. 250-261.

II.

In an action to recover damages because of negli-
gence in providing machinery or appliances not reason-
ably safe for the purpose, evidence of similar injuries
to other persons by the same machine or appliances, is
admissible.

District of Columbia vs. Armes, 107 U. S. 524.

Osborne vs. Detroit, 32 Fed. 36.

Patton vs. R, Co., 82 Fed. 979.

Hurd vs. R, Co,, 8 Utah 241, (S. C.) 30 Pac.
982.

Wigviore on Ev., Vol. 1 Sec. 458.

Bloomington vs. Legg, 37 N. E. 696.

Taylorville vs. Stafford, 63 N. E. 824.

Spaulding vs. Lithograph M. Co., 50 X. E. 543.

Lombar vs. Village of East Tax^as, 48 N. W.
947 (Mchcase).

III.

Evidence of prior similar injuries is admissible for
the purpose of showing both the dangerous character of
the device and constructive notice.

Lombar vs. Village, supra.

Osborne vs. Detroit, 32 Fed. 36.

District of Columbia vs. Armes, 107 U. S. 524.

Dyas vs. Southern P. Co., 73 Pac. 972.

IV.

The fact that the hook in question was a dangerous
device was not so apparent that ])hiintiff would be
charged with an assumption of the risk as a matter of
law.

Katalla Co. vs. Rones, 186 Fed. 30.

V.

A servant will not be held to have taken on himself
the risk incident to the use of unsafe machinery by con-
tinuing its use, without objection, after knowledge of
its defective character or condition, unless he also un-
derstood and appreciated the risks to which he was ex-
posed.

Biley's Master's Liability for Injuries to Ser-
vants, page 170.

ARGUMENT.

Defendant's counsel, in their brief, present three
propositions on which they seek a reversal, namely:

1. That the court erred in denying defendant's mo-
tion for a verdict ;

2. Error in admitting evidence of a prior similar
injury, and

3. Error in failing to give a requested instruction.
THE MOTION FOR A DIRECTED VERDICT.

I shall devote little space to a discussion of defend-
ant's contention that the evidence was insufficient to
submit to the jury. The contention is based solely on
the proposition of assumed risk. It is urged that the
hook was so clearly defective that plaintiff was bound
to take notice of its dangerous and defective character.
This is not a case, however, where the plaintiff was
working with and actually operating the device in ques-
tion. He was not the hook tender, did not, in truth,
come in contact with it or have occasion to carefully
observe it at any time. True, defendant contended that
plaintiff was its foreman and had charge of all a^:rrli-
ances, but that was squarely denied by plaintiff and his

6

witnesses, and hence was a question for the jury. Ac-
cording to plaintiff's testimony, and he was corroborated
therein by the very great weight of the evidence, his
duties were confined to work at the bottom of the well.
He assisted in digging the well; took his regular turn
in the work of digging; worked in the well in fitting
the casing; did no work outside of the vv^ell; had nothing
whatever to do with operating the bucket, or attaching
the hook. He simply tOv'^k care or assisted in taking care
of the dirt when lowered into the well ; saw that the cas-
ing was truly carried up and the earth securely filled in
around and about it. What was there in that work to
specially direct his attention to or cause him to consider
the character of the hook? Besides, the character, form
or appearance of the hook was not such as to suggest
its dangerous nature from a mere inspection of it.

THE EVIDEXCE OF PRIOR SIMILAR

INJURY.

Plaintiff called one Taj^lor as a witness. He testi-
fied that in October or November, 1908, he was in the
employ of defendant, installing a plunger elevator in the
Y. W. C. A. Building, working in the well ; that he was
"digging the shaft," that the same hook was used on that
work and on one occasion, while the bucket was descend-
ing, it came off the hook and fell upon him. Said noth-
ing about the injurj^ to him. The testimony was ob-
jected to on the ground that it was "incompetent, im-
material and irrelevant." No sugo^estion was made that
the time was too remote or that the conditions were
not shown to be substantially the same. It is now urG^ed
(1) that such testimony is never competent, and (2)
that the evidence did not disclose that the conditions

were the same, and (3) that the circumstance was too
remote. None of these objections, except the general
incompetency of such testimony, was urged at the trial.
I submit that only the qustion of the competency of such
evidence can or should be considered here. However, in
any view, the testimony was properly received.

That the conditions were the same was clearly in
evidence. It appeared from the evidence in the case that
in only three instances were plunger elevators installed
by defendant; in all other cases they installed electric
elevators. (See testimony of plaintiff, Vg. 43, Tran-
script; testimony of defendant's superintendent. Shep-
ard Pg. 111). The job on which the injury occurred
was the third instance only of installing plunger ele-
vators, and the hook was not used, for wells were not
dug in the construction of electric elevators. This then
was the third job only on which the hook had been em-
ployed. That it was the same hook, is conceded by
counsel at page 30 of their brief, where they say:

"The inference from the testimony of Hyde and
Taylor is that the hook made by Hyde was in use at the
time testified to by Taylor and also at the time of
Luck's injury."

They say, however, that "its condition at the latter
date was different from what it was in 1908." But how
different? The only evidence to that effect is that of
Hyde at pages 65 and 66, transcript. He testified that
he had the hook made, and as made, it was a safe hook
and was such when he turned it over to defendant ; that
he next saw it when he was working on the job where
plaintiff was injured and then it "had been spread."
That the defendant's superintendent told him that "it
had been sent to the shop where it was spread because

8

it was too hard to unhook." The latter denied this and
testified that no change had been made and the hook was
the same when plaintiff was injured as it was when
Hyde turned over to defendant. (Transcript pp.^).
Now Taylor was working for defendant on the Y.
W. C. A. Building when the accident to which he testi-
fied occurred, and after Hyde had turned over to de-
fendants the hook. Evidently it was either as origi-
nally made or as changed by Shepard, Vvhen the acci-
dent witnessed by Taylor occurred. If in its original
condition, the evidence tended to show that even then
it was an unsafe device; if it was after it had been
changed or "spread" then it vvas in exactly the condition
it was when plaintiff was injured. In no view was the
evidence incompetent.

REMOTENESS.

But counsel contend that the accident testified to
b}^ Taylor was too remote, for, thej^ say, it occurred in
October or November, 1908, while plaintiff was injured
in February, 1910, or about fifteen months later. It is
true that there is to be found in some of the decisions the
doctrine that evidence of similar injuries must not be of
circumstances too remote. But, aside from my con-
tention that the remoteness of the circumstance in ques-
tion was not mentioned at the trial, I submit that "re-
moteness" is a relative term. Here, while a year and
three months had intervened, it appeared that during
that time but twe elevators had been installed where
the hook was employed, and that in the installfition of
one of them the accident to which Taylor testified oc-
curred. The probability of the condition of the hoDk
having changed, was not worthy of consideration. The

9

mere matter of time, is not, of itself controlling in de-
termining the question of remoteness. In Wigmore on
Evidence, Sec. 437, it is said:

"When the existence of an object, condition, quality
or tendency at a given time is in issue, the prior existence
of it is in human experience some indication of its
probable persistence or continuance at a later period.
The degree of probability of this continuance depends
on the chances of intervening circumstances having oc-
curred to bring the existence to an end. The possibility
of such circumstances will depend almost entirely on the
nature of the specific thing whose existence is in issue
and the particular circumstances affecting it in the case
in hand. That a soap-bubble was in existence half-an-
hour ago affords no inference at all that it is in existence
now; that Mt. Everest was in existence ten years ago
is strong evidence that it yet exists ; whether the fact of
a tree's existence a year ago will indicate its continued
existence today will vary according to the nature of the
tree and the conditions of life in the region. So far,
then, as the interval of time is concerned, no fixed rule
can be laid dov/n; the nature of the thing and the cir-
cumstances of the particular case must control."

And in Augusta vs. Hafers, 61 Ga. 48, where a
party was injured by falling into a cellar opening, two
instances, within five or six years, of others falling intd
other like cellars were received in evidence.

In Topeka vs. Sherwood, 39 Kan. 690, (18 Pac.
933) where the injury was by tripping against a pro-
jecting plank in December, the fact of constant tripping
against the plank from March to December, a period of
ten months, was admitted.

10

HAD DEFEXDAXT DESIRED FURTHER
PROOF THAT THE HOOK WAS IN THE
SAME CONDITION WHEN THE TAYLOR
ACCIDENT OCCURRED, THAT IT WAS
WHEN PLAINTIFF WAS INJURED, THEY
SHOULD HAVE DEMANDED SUCH FUR-
THER SHOWING AT THE TRIAL.

Discussing this proposition, Professor Wigmore, in
his work on Evidence, Section 454, says :

"Where the time of the other instances is somewhat
removed, it is sometimes thought wise to require a pre-
liminary showing that the condition of the engine had
not changed in the meantime, (ante Sec. 437) ; but
the difficulty of such a showing by the plaintiff, and
the ease for the defendant of showing such a change
if it had occurred, make it much preferable to ignore
this requirement and to leave it to the defendant, on
the principle of Explanation (ante Sec. 449), to show
such a change if he can. The other instances, moreover,
may have occurred either before or after the time in
question, for in either case they show the condition of
the engine."

In the case under consideration, no pretense was
made that the hook was not in the same condition at the
time of the incident to which Taylor testified that it was
when plaintiff was injured. On the contrary, as we
have shown, defendant Superintendent Shepard testi-
fied (Transcript.'.?.'^..) that the hook has not been
changed.

COMPETENCY OF SIMILAR INJURIES

GENERALLY.

That evidence of similar injuries, is as a rule, com-

11

petent, is clearly sustained by the great weight of mod-
ern decisions. In the early case of Collins vs. Dorches-
ter, 6 Cush. 396, it was held that such evidence was not
competent. Of that decision, in Wigmore on Evidence,
Sec. 458, it is said:

"There would probably have been little difference
of practice in the use of this class of evidence, if there
had not been a series of precedents in Massachusetts,
beginning with Collins vs. Dorchester, which attempted
to cast discredit on the use of this evidence, and laid
down an absolute rule of exclusion. That ruling pro-
ceeded from the point of view bjth of relevancy and
of auxiliary policy, though without any full considera-
tion of either reason; and, coming at a comparatively
early date, served for a long time as a stumbling-block
to many courts, whose instinct would have led them
to receive such evidence. Its fallacies, from both points
of view, were first clearly exposed by Mr. Justice Doe,
in his classical opinion in Darling vs. Westmoreland;
and from that time the tide of rulings began to turn.
The ensuing cases show how an absolute rule of exclu-
sion, like that of Collins vs. Dorchester, is now-a-days
rarely attempted; and the two principles of relevancy
and auxiliary policy are usually applied anew to each
instance, as they ought to be. Strictly as a precedent,
Collins vs. Dorchester applied only to injuries in a high-
way, but its influence was to be seen in opinions upon
evidence involving other sorts of injuries, and even, to
some extent over this whole group of evidential material.
But Mr. Justice Doe's opinion utterly discredited it as
an obstacle to the investigation of truth, and even in
its own jurisdiction it was gradually narrowed in its ef-
fect, until the doubt may now be maintained, whether

12

it would there be followed, even upon its precise state
of facts. The precedents, however, in the various juris-
dictions still show traces of its misleading influence."

That such evidence is competent in the Federal
Courts is, I submit, settled by the decision of the Su-
preme Court in District of Columbia vs. Armes, 107 U.
S., 519-524, which was an action for personal injuries
resulting from a defective street or walk. At page
524, the court said :

*'The admission of this testimony is now urged as
error, the point of objection being that it tended to in-
troduce collateral issues, and thus mislead the jury
from the matter directly in controversy. Were such
the case, the objection would be tenable; but no dis-
pute was made as to these accidents, no question was
raised as to the extent of the injuries received, no point
was made upon them, no recovery was sought by rea-
son of them nor any increase of damages. They were
proved simply as circumstances which, with other evi-
dence, tended to show the dangerous character of the
sidewalk in its unguarded condition. The frequency of
accidents at a particular place would seem to be good
evidence of its dangerous character — at least, it is some
evidence to that effect. Persons are not wont to seek
such places, and do not willingly fall into them. Here
the character of the place was one of the subjects of in-
quiry to which attention was called by the nature of the
action and the pleadings, and the defendant should have
been prepared to show its real character in the face of
any proof bearing on that subject."

And continuing, at page 525-6, the court quoted
with aj)proval the language of the Supreme Court of
Illinois, as follows:

13

"In an action against the City of Chicago, to recover
damages resulting from the death of a person who in the
night stepped off an approach to a bridge while it was
swinging around to enable a vessel to pass and was
drowned — it being alleged that the accident happened by-
reason of the neglect of the city to supply sufficient lights
to enable persons to avoid such dangers — the Supreme
Court of Illinois held that it was incompetent for the
plaintiff to prove that another person had under the
same circumstances, met with a similar accident. City
of Chicago vs. Pothers, 42 111. 169. To the objection
that the evidence was inadmissible, the court said: 'The
action was based upon the negligence of the city in fail-
ing to keep the bridge properly lighted. If another
person had met with a similar fate at the same place
and from like cause, it would tend to show a knowledge
on the part of the city and there was inattention on
the part of their agents having charge of the bridge,
and that they had failed to provide proper means for the
protection of persons crossing on the bridge. As it
tended to prove this fact it was admissible; and if the
appellants had desired to guard against its improper
application by the jury, they should have asked an in-
struction limiting it to its legitimate purpose."

Referring to District of Columbia vs. Armes, Mr.
Justice Brown, in Osborne vs. Detroit ^ 32 Fed. 36, said:

"The admission of the testimony of Bateson in re-
gard to the accident of himself and wife, and the pre-
cautions they took afterwards. Bateson testified, in
substance, to the defective condition of the walk at that
place, and that about two months before the accident
he and his wife met with a slight accident there, and
that after that they always walked in single file. We

14

take it that similar accidents, occurring in the same
neighborhood may be shown as evidence, not only of the
actual condition of the walk, but as tending to show
notice to the citv. It is true that the Massachusetts
cases hold that this evidence is not admissible upon the
ground that it raises a collateral issue which the defend-
ant is not called upon to try, and therefore may well
claim to be surprised. The weight of authority, how-
ever, is. decidedly the other way. See Delphi vs.
JLoivery's Adinx, 74 Ind. 521, in which all the former
cases are viewed. So far as the federal courts are con-
cerned, the question has been put at rest by the case of
District of Columbia vs. Armes, 107 U. S. 519.

THE REQUESTED INSTRUCTIONS.

At the trial of this cause, the defendant presented
some tvv^enty requests for instructions of which only
the following four are embodied in the Bill of Excep-
tions, namely:

1. "If you find that defendant was negligent as
charged in the complaint, before plaintiff can recover in
this action, you must further find that defendant's neg-
ligence was the proximate cause of the accident; that
is — that cause which conduced directly to the accident,
and without which the accident would not have occurred.

2. I instruct you that plaintiff assumed the ordi-
nary risk and dangers incident to his employment, and
if you find from the evidence that the risk of the bucket
becoming dislodged from said hook while being lowered
into the well was a risk and hazard incident to plaintiff's
employment, then I instruct you that such risk was as-
sumed by him and he cannot recover.

3. I also instruct you that plaintiff assumed such

15

risks in and about his employment as were open and ob-
vious. An open and obvious risk is one that is in-
stantly observed and appreciated by a person of ordi-
nary intelligence. If you find from the evidence that
the risk and danger of the bucket becoming unfastened
from the hook as the same was being lowered into the
well, was such an open and obvious risk as would be
immediately observed and appreciated by a person of
ordinary intelligence, then I instruct you that plaintiff
assumed said risk and he cannot recover in this action.

4. If you find from the evidence that at the time
of receiving his injury, plaintiff was just as well aware
as his employers, of the condition of said hook, and the
use to which the same was put, and of the dangers of
working around the same, or if you find that by reason
of his being in and about, and in close proximity to
said hook for a considerable period of time, he had
equal means with, or better opportunities than, the de-
fendant, to discover that said hook was an unsuitable
appliance, and that the danger of working there under
such conditions was open and could have been discovered
by the plaintiff by the use of ordinary care, then I in-
struct you that plaintiff cannot recover and your ver-
dict should be for the defendant."

Here, it will be observed are four distinct requests,
but, as stated, there were presented, something over
twenty. Defendant now assigns as error in its brief,
only the failure to give the first.

My contentions regarding this assignment are (1)
that no exception was reserved; (2) that in substance
the instruction was given.

In support of my contention that no exception was
taken to the failure of the Court to mve the instruction.

16

I call attention to page 124 of transcript which shows
just what occurred in the matter of exceptions to the
charge, namely:

"Whereupon, after the Court had instructed the jury
as hereinbefore certified, on pages 49 and 52, inclusive
of this Bill of Exceptions, and before the jury retired,
the following colloquy between Counsel and Court took
place:

MR. LEITER: I simply desire to make exception
to give the defendant's requested instructions in the
form asked and specify specifically an exception to that
instruction given by your Honor, relative to the other
accident — falling of the bucket on another job.

COURT : I think I have given in substance the in-
structions I intended to.

MR. LEITER: I have not been able to check them
up entirely and for that reason desire an exception."

Whereupon, the Court allowed said exception.

As stated, the Bill of Exceptions shows four re-
quests, but in truth some twenty were presented.
Counsel was not able to specify what particular request
or requests he contended had not been covered by the
charge as given. The Court told him he had endeavored
to and supposed he had covered them all. Was it not
the duty of Counsel then to point out the particular
one or ones he thought were not covered? Surely it
is unfair to the court and to the plaintiff that he should
be permitted to thereafter select such as he could argue
had not been given and assign error thereon. The
plaintiff was entitled then and there to be informed
what pro])osition the defendant claimed had not been
su})mitted to the jury. The particuhir request which

17

he now contends it was error on the part of the trial
judge to refuse to give was the following:

"If you find that defendant was negligent as charged
in the complaint, before plaintiff can recover in this ac-
tion, you must further find that defendant's negligence
was the proximate cause of the accident; that is — that
cause which conduced directly to the accident, and with-
out which the accident would not have occurred."

This embodies an abstract proposition of law, which
I contend was fully covered by the Court's charge, but
it is a proposition which would not have been disputed,
although not a strictly accurate statement of the law.
Had Counsel for defendant called attention to it, plain-
tiff's counsel would have conceded the proposition then
and there. It would be very unfair to permit this ex-
ception to be considered, in the circumstances, and I
can not believe it will be considered. However, it was
fully covered by the charge given. Among other in-
structions, the court said to the jury:

"The law is, that an employer is required to exercise
reasonable care and diligence to provide his employee
or employees with reasonably suitable tools and appli-
ances to work with, and it was therefore the dutv of the
defendant in this case to exercise reasonable care and
caution to provide suitable appliances with which to
handle this bucket, and if it did not do so, and by
reason of that fact, the bucket fell and injured the
plaintiff without any fault on his part, it would be liable
to him for such injury. Now what constitutes reason-
able care and caution depends upon the circumstances
of each case. The standard is, what would a reasonable
prudent mari have done under the same circumstances,
and, therefore, the test will be whether or not a reason-

18

ably prudent person in charge of work of that character
— of the character in which the plaintiff was engaged
at the time of his injury, would have provided a hook
of the kind and character in use at that time, and if he
would, and the defendant's conduct measured up to this
standard, then it discharged its duty and would not be
liable for an accident that might have occurred without
its fault. The defendant was not, and no employer is
an absolute insurer of the safety of his employees. He
is under no obligation to respond in damages to a man
in his service who is injured unless he himself is at fault.
Accidents may happen, and are likely to happen at
any time without fault of anybody and for such acci-
dent, an employer is not liable. Nor is negligence to be
imputed or inferred from the mere fact of the accident,
but the burden is on the plaintiff in this case to show by
a preponderance of testimony that the hook in use at the
time of this accident was not suitable and proper under
the rule, substantially as I have given it to you. In
other words, that it was not such a hook as a reasonably
prudent man would have provided under the circum-
stances for use in that character of business. If you
find that it was such a hook, then of course this ease is
ended, and your verdict would be in favor of the de-
fendant."

"If, on the other hand, you find that it was not a
suitable hook, then it will be necessarv for vou to cour
sider the other questions that I have suggested to you.
It is claimed by the defendant that ^Ir. Luck, as I
said, was in charge of the work, and that he had au-
thority under his employment to provide these instru-
mentalities, and that it furnished suitable material from
which hooks could be made, or suitable hooks, and left

19

it to Mr. Luck's judgment as to the kind and character
that should be used in the work. If it did that, and if
that was the relationship of the parties, then Mr. Luck
could not recover against it, because of a defective hook
that he himself used when he had a right, and could have
selected or procured another. If the company furnished
suitable materials — suitable hooks, or suitable materials
with which to make hooks — and left the question to Mr.
Luck's judgment, as to the kind and character to be
used, then it discharged its duty, and he will have no
cause to complain if he was injured because of the char-
acter of hook he voluntarily used. But unless he was
charged under his employment with this duty, then it
makes no difference whether he was a foreman or a
common laborer, because the obligation of an employer
to furnish when he assumes to do so, his foreman with
reasonably safe tools and appliances, to work with, is
just the same as any other workman, and the relation-
ship of Mr. Luck and the defendant in this connection
only becomes important in determining whether he him-
self had authority to make selection of this hook, or in-
strumentality."

"If he had, whether he was a foreman or a common
laborer, and he chose a defective hook or chose to use a
defective hook, when he had a right to procure another
and suitable one, he would have no cause of action
against the company whether a foreman or common la-
borer. On the other hand, if he was not charged with
that duty, did not have that right, then it makes no dif-
ference whether he was a foreman or a laborer, because
the company owed him just exactly the same duty, re-
gardless of his grade of employment."

"Then, another question. It is said in this case, and

20

claimed by the defendant, that this accident occurred
through the negligence or carelessness, as I suggested,
of the man at the top of the shaft, who attached the
bucket to the hook; in other words, that the bucket fell,
not because of a defective hook but because of the care-
less mamier in which it was attached, and if that was
true then the company would not be liable to jMr. Luck
for his injury, because the negligence would not be that
of the company but would be that of a fellow servant,
a man working with him and for which the company
would not be liable.'*

"Third. It is claimed that because this hook had been
in use for some considerable time on this work, and
that Mr. Luck knew that fact, he is chargeable — or
that he assumed the risk of damage or injury to him-
self, from the use of that hook. Now, unless Mr. Luck
was charged with the duty, or had the authority, to pro-
vide this hook and instrumentality for lowering this
bucket he had a right to presume that the company had
discharged its duty and exercised reasonable care in pro-
viding instrumentalities, and he did not assume the risk
of using this instrumentality unless he knew that they
v/ere unsafe and improper, and appreciated the danger
from using them, or unless the danger was so obvious
and apparent that any reasonable man would have re-
fused to work in the well where this bucket was being
lowered, or would have complained to the company on
account of the defective hook."

I submit that the foregoing fully presents the law
of the case so far as the requested instruction is con-
cerned.

The iurv was told that in order to return a verdict
for the plaintiff they must find (1) that the hook was

21

not a reasonably safe appliance — or such a device or ap-
pliance as a reasonably prudent man would have selected
and, (2) that the accident was not due to the negligence
of a fellow servant, and (3) that the risk had not been
assumed by plaintiff, and the court explained to the
jury that if the plaintiff knew the dangerous character
of the hook, or such character was so obvious and apr
parent that a reasonable man would have observed it,
or if the selection of the hook was a part of the plain-
tiff's duty or he had the right to select the hook to be
used, he could not recover. These instructions fully pre-
sented to the jury the doctrine of proximate cause.

"The Proximate Cause" said the Supreme Court of
the United States in Insurance Co, vs. Boon, 95 U. S.
130 "is the efficient cause, the one that necessarily sets*
Che other causes in operation." Strictly speaking, the
request did not embody the law, for it defined "proxi-
mate cause" to be "that cause which conducted directly
to the accident and without the accident would not have
occurred." That, I submit was not a correct definition
in the circumstances. There were several causes "with-
out which the accident would not have occurred." For
instance, the bucket struck the top of the casing. If the
casing had not been there, the accident would not have
occurred; if the bucket had not struck the casing, the
accident would not have occurred. The proximate
cause was the negligence of defendant in providing a
hook that was not reasonably safe; that was "the effi-
cient cause" which "necessarily set the other causes in
operation." And the Court clearly instructed the jury
in what circumstances defendant would be liable in case
they found the hook not to have been a reasonably safe
device and that defendant provided it. What assistance

22

would it have been to the jury to have hurled the words

"proximate cause" at them? In truth the word is not a

suitable one for the jury; it is one rather to be employed

in legal opinions and discussions.

I respectfully submit that the judgment should be

affirmed.

C. W. FULTON,

Attorney for Defendant in Error.

No.

THE KATALLA COMPANY,
a Corporation,

Plaintiff in Lrror.

VS.

JOHN P. JOHNSON,

Defendant in Error.

TRANSCRIPT OF RECORD

Upon Writ of Error to the United States District Court

for the Western District of Washington,

Northern Division.

Lowman & Hanford Co., Seattle

No.

THE KATALLA COMPANY,
a Corporation,

Plaintiff in Error,

vs.

JOHN P. JOHNSON,

Defendant in Error.

Y

TRANSCRIPT OF RECORD

Upon Writ of Error to the United States District Court

for the Western District of Washington,

Northern Division.

Lowinan & Hanford Co., Seattle

INDEX.

Page
Acknowledgment of Service of Papers on Writ of

Error 157

Answer 5

Assignment of Errors 150

Bill of Exceptions 23

Bond on Writ of Error 155

Certificate of Clerk U. S. District Court to Record,

etc 160

Certificate to Bill of Exceptions 147

Citation on Writ of Error 163

Complaint 2

Consent That Verdict be Reduced to $5,700 and That
Judgment be Entered upon Verdict as so Re-
duced 18

Decision and Order on Motion for New Trial 16

Exception to Instruction 144

Exceptions, Bill of 23

Further Instruction of the Court to the Jury 144

Instruction of the Court to the Jury, Further 144

Instruction Requested by Defendant, etc 145

Instructions of the Court to the Jury 136

Judgment 19

Memorandum Decision and Order on ^dotion for

New Trial 16

Names and Addresses of Counsel 1

Opinion and Order on Motion for New Trial 16

Order Allowing, Settling and Certifying Bill of Ex-
ceptions 148

Order Allowing Writ of Error 154

Order Denying Petition for New Trial 17

Order Extending Time Until April 1, 1912, to File

Bill of Exceptions 15

ii JOHN p. JOHXSOX vs. THE KATALLA COMPANY.

Page
Order Extending Time to and Including April 10,

1912, to File Bill of Exceptions 21

Order Extending Time Until and Including April

20, 1912, to File Bill of Exceptions 22

Petition for New Trial 11

Petition for Writ of Error 153

Praecipe for Transcript of Record 158

Eecital Ee Motion for a Directed Verdict, etc 136

Eecital Ee Objection to Testimony of I. F. Laucks. . . 135

Eeply 8

TESTIMONY ON BEPIALF OF PLAINTIFF :

CAESON, HEEBEET 72

Cross-examination 79

Eecalled 97

JOHNSON, FEED 110

Cross-examination 115

Eecalled 124

Eecalled 133

JOHNSON, JOHN ANTONE 116

Eecalled 120

JOHNSON, JOHN P 26

Cross-examination 44

Eecalled 136

LAUCKS, I. F 98

Cross-examination 104

Eedirect Examination 108

LOWE, Dr. A. 0 126

McCOED, E. S 90

Cross-examination 96

M'UECHISON, SAMUEL 69

Recalled 127

SIEOLEY, E. E 23

YOUNG, J. H 131

A^erdict 10

Writ of Error 161

In the United States Circuit Courts Ninth Circuity Western
District of Washi7igton. Northern Division.

JOHN P. JOHNSON,

Plaintiff and Defendant in Error.

vs.

^ No.

THE KATALLA COMPANY,
a Corporation,

Defendant and Plaintiff in Error.

NAMES AND ADDRESSES OF COUNSEL.

MARTIN J. LUND, Esq.,

359 Arcade Building, Seattle, Washington. Attorney for De-
fendant in Error.

L. BOGLE, Esq.,

610 Central Building, Seattle, Washington. Attorney for
Plaintiif in Error.

CARROLL B. GRAVES, Esq.,

610 Central Building, Seattle, Washington. Attorney for
Plaintiff in Error.

F. T. MERRUrT, Esq.,

610 Central Building, Seattle, Washington. Attorney for
Plaintiff in Error.

WM. H. BOGLE, Esq.,

610 Central Building, Seattle, Washington. Attorney for
Plaintiff' in Error.

JOHN P. JOHNSON VS.

Iti the Superior Court of the State of Washington for the

County of King.

■

No. 1940.
Complaint.

JOHN P. JOHNSON,

Plaintiff,
vs.

THE KATALLA COMPANY,
a Corporation,

Defendant.

The plaintiff complains and alleges :

I.

That the defendant above named now is and at all the time
herein mentioned was a corj^oration duly organized and existing
under and by virtue of the laws of the State of New York, and
doing business in the State of Washington, and having its prin-
cipal office in King County, Washington, and was engaged in
the construction of the Copper River & Northwestern Railroad
near Copper River, Alaska. That on the 25th day of May, 1910,
the ])laintitf was employed as a laborer on the construction of
said road at a place about one hundred and twenty-three miles
from Cordova, Alaska, and the work was rock work, the rock
being l)lasted and removed by the use of dynamite, which was
furnished by the defendant for that purpose.

II.

Tlint at said time the defendant n(\iili gently and carelessly

furnished the men working with the plaintiff and in his imme-
diate* neiglil)orIiood, dangerous, unsafe, defective and extra
hazardous dynamite for use by tliem in bhisting, in this, to-wit :
That tlir dynamite so furnislied was more than two years old
and by reason thereof unsafe to use and liable to ex]>lode pre-
maturely, thougli liaiHlled ever so carefully. That the dynamite
so fui-nislicd by the defendant had further been ex]>osed to the
air, \vin<l, rain and snow, lieat and cold, before it was given to
the men for use, tlu^n^by rendering it extra dangerous, unsafe

THE KATALLA C():sri'AXY 6

to use and liable to explode prematurely, though handled ever
so carefully. That the age of said dynamite and its extra
dangerous condition by reason thereof was well known to the
defendant, but unknown to the plaintiff and the men using the
dynamite and to whom it was furnished by defendant; that the
said dynamite had been exposed to the elements and its extra
dangerous condition by reason thereof was well known to the
defendant, but unknown to the plaintiff and the men using the
dynamite and to wliom it was furnished by defendant. That
said defendant negligently and carelessly failed and neglected
to inform the plaintiff and the men using said dynamite of the
extra dangerous condition of the same.

III.

That on said 2()th day of May, 1910, the men working with
the plaintiff' were loading a hole in the rock with the dAuamite
so furnished by the defendant, in a proi)er and careful manner
and while they were so doing, the dynamite exploded prema-
turely by reason of its extra dangerous and unsafe condition,
caused as heretofore alleged, and without warning and near
the place Avhere the plaintiff was working causing the injuries
hereinafter alleged.

IV.

That the force of said explosion caused a large rock to fall
on the plaintiff, causing great injury in and to his whole body
and particularity to his chest, legs and right foot, causing a cut
in his head and the fracture of several ribs and crushing his
riglit foot. That by reason of such injuries he was removeil
to the hospital, where he remained until the 23d day of June,
1910, and he suffered great pain and he still suffers great pain
and Avill always suffer great pain by reason of said injury, and
has since been unable to earn any money and to do any work
and will remain a cri])])le and unable to do any work for the
remainder of his life. Tliat at the tinu* of the injuiw he was
thirty-seven years of age, a common laborer by occupation and
earning and able to earn |4.50 per day, and that by reason of
all the facts aforesaid the plaintiff has been damaged in the
sum of twenty-five thousand doUars (|25,000.00).

4 JOHN P. JOHNSON VS.

Wherefore, the plaintiff demands judgment against the de-
fendant in the sum of twentT-five thousand dollars ($25,000.00)
and costs of suit.

MARTIN J. LUND,
Attorney for Plaintiff.

State of Washington,
County of King. — ss.

John P. Johnson, being first duly sworn, says that he is the
plaintiff' in the above entitled action, that he has heard the fore-
going complaint read, knows the contents thereof and believes
the same to be true.

JOHN P. JOHNSON,

Subscribed and sworn to before me this 30th day of Novem-
ber, 1910.

MARTIN J. LUND,

Notary Public in and for the State of Washington, residing
at Seattle.

Filed December 19, 1910. D. K. Sickles, Clerk.

Indorsed : Complaint. Filed U. S. Circuit Court, Western
District of Washington, January 5, 1911. Sam'l D. Bridges,
Clerk. W. D. Covington, Deputy.

THE KATALLA COMPANY

In the United States Circuit Courtj Ninth Circuity Western
District of Washington, Northern Division.

JOHN P. JOHNSON,

^

Plaintiff y

vs.

THE KATALLA COMPANY, a Cor-
poration,

Defendant.

y

No. 1940.
Answer.

Answering the complaint herein :

I.

Defendant admits that it was and is a corporation duly
organized and existing under the laws of the State of New York,
with its principal office in King County, Washington, as alleged
in paragraph I of the complaint, and that plaintiff was em-
ployed as a laborer on the construction of the Copper River &
Northwestern Railroad near Copper River, Alaska, on or about
the 26th of May, 1910, at the point alleged in the complaint,
and that rock was being blasted by the use of dynamite in the
construction of the road; and denies each and every other
allegation, matter and thing and each and every part and por-
tion thereof in said paragraph I stated.

IL

Denies each and every allegation contained in paragraph II
of the complaint.

IIL

Denies generally each and every allegation, matter and
thing in paragraph III of the complaint stated.

IV.

Admits that plaintiff received certain injuries by reason of
an explosion of dynamite on said work on or about the 20th
day of May, 1910, and denies generally each and every other

6 JOHN P. JOHNSON VS.

allegation, matter and thing, and each and every part and
portion thereof in paragraph IV of the complaint stated.

For its first affirmative defense, defendant alleges :

That said injuries were owing to the fault and negligence
of plaintiff himself.

For its second affirmative defense, defendant alleges :

That after plaintiff received the injuries complained of, and
before the commencement of this action, plaintiff' for a valuable
consideration to him in hand paid by one M. J. Heney, fully
and forever released and discharged said M. J. Heney, his prin-
cipals, agents and servants from any and all liability for dam-
ages for said injuries and for any ailment, complaint, damage
or harm arising or growing out of said injuries so received by
the plaintiff on said 26th day of May, 1910, and while in the
employ of said M. J. Heney, and did thereby fully and forever
and for a valuable consideration discharge and release this de-
fendant and all others from anv and all liabilitv or claims for
damage for and on account of said injuries, which said release
and discharge was in writing, duly signed, executed and deliv-
ered by said plaintiff.

Wherefore defendant prays judgment that jdaintiff take
nothing by this action, that the same be dismissed, and for its
costs and disbursements herein.

BOGLE, MERRITT & BOGLE,

Attorneys for Defendant.

State of Washington,
County of King. — ss.

(\ A. ^(OIASTERS, being first duly sworn, on his oath de-
I)oses and says :

That he is sec\v-treasurer of Tlie Katalla (\)m])iiny, a corpor-
ation, defendant in the above entitled action ; and as such officer
of said corporation is autliorized to make this verification in its
behalf; that he has read the foregoing answer, knows the con-
tents thereof, and believes the sanu^ to be true.

C. A. McMASTERS,

THE KATALLA COMPANY 7

Subscribed and sworn to before me this 4th day of April,

1911.

(Seal.) J. C. HARRIS,

Notary Public in and for the State of Washington, residing

at Seattle.

Service of within answer this 4th day of Ajjril, 1911, and
receipt of a copy thereof, admitted.

MARTIN J. LUND,
Attorney for Plaintiff.

Indorsed : Answer : Filed U. S. Circuit Court, Western
District of Washington, April 4, 1911. Sam'l D. Bridges, Clerk.
W. D. Covington, Deputy.

8

JOHN P. JOHNSON VS.

In the United States Circuit Courts Ninth Circuit, Western
District of Washington^ Northern Division.

JOHN P. JOHNSON,

Plaintiff,

vs.

poration,

THE KATALLA COMPANY, a Cor-

Defcndant. ,

No. 1940.
Reply.

Comes now the plaintiff and for reply to the first and second
affirmative defenses contained in defendant's answer herein,
says :

I.

Plaintiff denies each and every allegation contained in said
first affirmative defense.

II.

Plaintiff denies each and every allegation contained in said
second affirmative defense.

Further replying to said second affirmative defense the
plaintiff alleges :

I.

That after plaintiff's injury, as alleged in his complaint
herein, he was removed to the hospital, and while he was there,
the men working on the said road, b^^ reason of plaintiff's mis-
fortune, took up a collection of money among tliemselves for
tlie ])laintiff and paid the same to said M. J. Heney's agent with
instruction to give it to the plaintiff, of wliich ])laiutiff was
informcMl, and when the phiintiff was discharged from the hos-
pital, a small sum of money was turned over to the plaintiff
by said agent of said M. J. Heney, wlio told plaintiff that it
was money coHected for him by the men working on the road,
and said agent ])roduceHl a pai)er, which he stated was a receipt
for such money, and asked the plaintiff* to sign it. That the

THE KATALLA COMPANY 9

plaintiff is an alien unable to read the English language, and
such paper was written in English and plaintiff could not
read it, and rel^dng ux)on the statement of said agent, that it
was a receipt for the money, which had been coHected for him,
as aforesaid, he signed it, and that if the i)aper so signed is a
release, as alleged in said affirmative defense, it was signed by
the plaintiff without knowing it to be such and through the
fraud practiced upon him by the said agent of said M. J. Heney,
and was without consideration.

Wherefore, plaintiff' prays for relief as in his complaint
herein.

MARTIN J. LUND,
Attorney for Plaintiff.

State of Washington,
County of King. — ss.

Martin J. Lund, being first duly sworn, says that he is the
attorney for the plaintiff in this action, that he has read the
foregoing reply, knows the contents thereof and believes the
same to be true. That he makes this verification on behalf of
the plaintiff for the reason that he is not now in the State of
Washington.

MARTIN J. LUND.

Subscribed and sworn to before me this 21st day of April,
1911.

HENRY GULLIKSEN,

Notary Public in and for the State of Washington, residing
at Seattle.

Service of within reply and receipt of copy admitted this
24th day of April, 1911.

BOGLE, MERRITT & BOGLE,

Attornevs for Defendant.

Indorsed : Reply. Filed U. S. Circuit Court, Western Dis-
trict of Washington, April 24, 1911. Sam'l D. Bridges, Clerk.
W. D. Covington, Deputy.

10

JOHN P. JOHNSON VS.

In the District Court of .the United States for the Western

District of Washi}igton.

JOHN P. JOHNSON

vs.

^

Plaintiff',

THE KATALLA COMPANY, a Cor
poration,

Defendant. ^

■

No. 1940.
Verdict.

We, the jury in the above entitled cause, find for the plaintiff
and assess his damages at the sum of |T,500.00.

S. K. PAINTER, Foreman.

Indorsed : Verdict. Filed in the U. S. District Court,
Western Dist. of Washington, Jan. 11, 1912. A. W. Engle,
Clerk. By S. Deputy.

THE KATALLA COMPANY 11

In the United States District Courty Western District of
Washington. Northern Division.

No. 1940.

JOHN P. JOHNSON,

Plaintiff y
vs.

r Petition for New
THE KATALLA COMPANY, a Cor- ^.^.j^j

poration.

Defendant.

Now comes the defendant and petitions and moves the Court
to grant a new trial of the above entitled action, and, as ground
for such petition, assigns the following causes materially affect-
ing its substantial rights, to-wit :

I.

Insufficiency of the evidence, in the following particulars, to
justify the verdict :

1. That the negligence charged against the defendant was
not shown by the evidence.

2. There was no evidence that the explosive which was
discharged to the injury of plaintiff was defective or extra
hazardous, or was more dangerous to handle than like explo-
sives of the usual composition and of high explosive nature.

3. That there was no evidence that the explosion was caused
by reason of any defective or extra dangerous condition of said
explosive, but the evidence affirmatively showed that tlie quality
of the explosive was such that it would not discharge prema-
turely, or from slight jars or rough handling.

4. The evidence did not disclose the cause of the exi)losion
at the time the plaintiff received his injuries, and there was no
evidence of facts from Avhich the jury could draw any inference
as to the cause of the explosion, and the tinding of the jury was
based on mere conjecture and guess.

5. There was no evidence that the explosive was extra dan-
gerous or defective when it was furnished by the defendant,

12 JOHX p. JOHNSON VS.

and no evidence was offered regarding its character and condi-
tion when it left the possession of defendant, and there Avas no
evidence tending to show that the defendant did not exercise
the care in furnishing the explosive to M. J. Henev required by
the instructions of the Court.

(>. The verdict was against the law and the evidence, in
this, that the Court charged the jury that the only duty of the
defendant was to use ordinary care to see that the explosive
sold by it was not extra hazardous or unnecessarily dangerous,
and there was no evidence to show or that tended to show, any
such lack of care.

7. There was no evidence that any contractual, or other,
relation existed between the plaintiff and the defendant which
imposed upon the defendant any greater duty than to observe
the same degree of ordinary care that one person should ob-
serve for the safety of every other person, and there is no evi-
dence of any failure on the part of defendant to observe such
ordinary care.

8. The evidence failed to show the agreement or contract be-
tween the defendant and M. J. Heney under Avhich the explosive
was furnished, and that it appears that Heney and his agent
had as full opportunity of knowing the character and condition
of such explosive as defendant had, and the evidence wholly
fails to show that Heney and his agents did not receive and
undertake the use of such explosive with full knowledge of its
character and condition if such explosive was in any respect
defective at the time it was delivered by the defendant.

9. Th(» (evidence fails to show that the act of defendant in
selling the explosive to Heney was the direct and proximate
cause of tlie injury to plaintiff", because, if the explosive was
defective, it a])pears that Heney, his agents and sub-contractors,
witli full op])()rtunity to inspect and know the character of such
explosive, voluntarily assumed to use said explosive and ex-
posed the plaintiff to danger, and such act was the direct and
proximate cause of the injury to plaintiff".

10. There was no evidence tending to show the natui*al cliar
acter of the dynamite or blasting ])ow(ler which the sub-con-
tractor was using on the day of the* accident, as to whether it

THE KATALLA COMPANY 13

was by its original composition and combination a highly ex-
plosive and dangerous powder and liable to V)e suddenly ex-
ploded while being used solely on account of its higlily exj)losive
and naturally dangerous character.

11.

Errors in law occurring at tlie trial and excepted to at the
time, as follows :

1. The denial of the motion of the defendant that the Court
peremptorily instruct and direct the jury to return a verdict
in favor of the defendant.

2. The instruction given by the Court as follows :

^'Now there is no evidence as to under just what arrange-
ment the Katalla Company issued this dynamite wliich came
into the possession of Heney and was carried to this location.
Whether it was furnished because it was part of the contract
that it should be furnished, or whether it was sold, we do not
know. The evidence does not show.

"It is the law, however, that if the owner of a railroad com-
pany engaged in constructing a railroad, lets out a general con-
tract for the construction of the road, knowing that that con-
tract has been let, and that a large number of men are to be
emploj^ed or have been employed, in the actual work of con-
struction, furnished tlie exjilosive to be used by the individuals
who are to actually do the definite construction work, it is the
duty of the railroad furnishing the explosive under these cir-
cumstances to exercise ordinary' care to see that tlie (^xi)losive
furnished is not unnecessarily dangerous."

3. The following instruction of the Court, which was given
as an addition to defendant's request numbered 1, to- wit :

''This is not intended to qualify what I have already said,
that if there was a general contract for the construction of the
road and the defendant company liaving made that contract had
knowledge of it, then when furnishing the dynamite to be used
in the construction of the road, it would be subjtM-t to the obli-
gation to use ordinary care, as I have already stated."

4. The refusal of the (^ourt to give the following part of
defendant's requested instruction numbered 2, to-wit :

14 JOHN P. JOHNSON VS.

"If the Katalla Company furnished unsafe explosives to
said contractor, and the contractor knew the unsafe character
of such explosive, or by reasonable inspection could have deter-
mined its character, and Avith such knowledge said contractor
purchased from the Katalla Company such explosives, and an
accident occurred in the use of the same, then the Katalla Com-
pany would not be liable, but the direct and proximate cause of
such an accident Avould be the act of the contractor in using,
or furnishing for use, such unsafe explosive."

5. Euling of the Court in permitting the Avitness, A, B.
Laucks, to ansAver the hA pothetical question propounded by the
plaintiff, calling for AAitness's opinion as to Avhat caused the
explosion at the time of the plaintitf' s injury .

III.

Excessive damages appearing to have been given under the
influence of passion or of prejudice.

Dated this 18th day of January, 1912.

BOGLE, GRAVES, MERKITT & BOGLE,

Attorneys for Defendant.

Service of Avithin petition this 18th day of January, 1912,
and a receipt of a copy thereof, admitted.

MARTIN J. LUND,
Attorney for Plaintiff.

Indorsed: Petition for New Trial. Filed *i the V. S. Dis-
trict (Vnirt, Western Dist. of Washington, Jan. 19, 1912. A. W.
Engle, Clerk. By S., Deputy.

THE KATALLA COMPANY 15

In the United States District Courts Western District of
Washington. Northern Division.

JOHN P. JOHNSON,

Plaintiff' y
vs. No. 1940.

THE KATALLxV COMPANY, a Cor- Order

poration.

Defendant.

Upon the motion and application of the defendant therefor,
it is ordered that the time for preparing, presenting and filing
the defendant's Bill of Exceptions in this case be, and the same
is hereby extended until the 1st day of April, 1912.

Dated February 19th, 1912.

GEORGE l)ON\YORTH, Judge.

Indorsed: Order. Filed in the U. S. Circuit Court, Western
Dist. of Washington, Feb. 19, 1912. A. W. Engle, Clerk. By
S., Deputy.

16 JOHN P. JOHNSON VS.

In the United States District Courts Western District of
Wash ington . Norther)) D i v is ion.

JOHN P. JOHNSON,

Plaintiff',
VS. No. 1940.

THE KATALLA COMPANY, a Cor- (Circuit Court.)

poration,

Defendant.

MEMORANDUM DECISION AND ORDER ON MOTION

FOR NEW TRIAL.

MARTIN J. LUND, for PL^intiff.

BOGLE, GRAVES, MERRITT & BOGLE, for Defeudant.

DONWORTH, District Judge.

This is an action for personal injuries. The jury rendered
a verdict for |T,500 damages and the defendant has petitioned
for a new trial on several grounds. I feel satisfied with the
rulings made at the trial and Avith the charge to the jury. I
also feel satisfied that the evidence is sufficient to support the
verdict in all respects except the amount of danmges. I have
carefully considered the evidence touching the nature and ex-
tent of plaintiff's injuries and cannot lead myself to believe that
there is evidence here showing |7,500 damages. Giving to the
evidence its most liberal construction consistent within reason,
I conclude that |5,700 is the largest verdict that this evidence
can sustain. It is therefore ordered that if within ten days
from this date plaintiff files in the clerk's office a written remis-
sion of all of th(^ verdict and judgment in excess of |5,T00, the
])(4ition for a new trial will be denied and in the event of the
failure of the plaintiff' to file such remission, the ])etition for
new trial will be granted. To tliis order botli plaintiff and
defendant except and said exceptions are allowed.

February 1>1), li)12. (JEORGE DONWORTH, Judge.

Indorsed : Memorandum Decision and Order on ^lotion for
New Trial. Mled in the U. S. District Court, Western Dist.
of Washington, Fel). 29, 11)12. A. W. Engle, Clerk. By S.,
J)(»j)uty.

THE KATALLA COMPANY 17

In the United States District Courts Western District of
Washington. Northern Division.

JOHN P. JOHNSON,

Plaintiff' y

vs.

^

y

No. 1940.

THE KATALLA COMPANY, a Cor Order,

poration.

Defendant, ^

This cause came regularly on to be heard in the above en-
titled Court upon the petition of defendant for a new trial, and
the Court made an order directing the plaintiff to remit from
the verdict of the jury herein the sum of |1, 800.00, and the
plaintiff having filed a remission consenting that the verdict of
the jury be reduced from |7,500.00 to |5,700.00, it is hereby
ordered that defendant's petition for a new trial be and the
same is hereby denied. To this order defendant excepts and said
exception is allowed.

Done in open court this 12th day of March, 1912.

GEORGE DONWORTH, Judge.

Service of the within Order by delivery of a copy of the
undersigned is hereby acknowledged this 11th day of ^Lirch,
1912.

BOGLE, GRAVES, MERRITT & BOGLE,

Attorneys for Defendant.

Indorsed : Order Denying Pet. for New Trial. Filed in
the IJ. S. District Court, Western Dist. of Washington, March
12, 1912, A. W. Engle, Clerk. By S., Deputy.

18

JOHN P. JOHNSON VS.

In the District Court of the United States for the Western
District of Washington. Northern Division.

JOHN P. JOHNSON,

Plaintiff,

vs.

THE KATALLA COMPANY, a Cor-
poration,

Defendant.

Y No. 1940.

In this cause, the jury having returned a verdict in favor
of the plaintiff in the sum of $7,500.00, and the defendant hav-
ing filed a petition for a new trial, and the Court having made
an order giving the plaintiff the option of reducing the verdict
to f5,700.00 or accept a new trial, the plaintiff herebv consents
that the verdict rendered in this cause be reduced to |5,700.00
and that judgment be entered upon such verdict as so reduced.

Dated at Seattle, Wash., March 9, 1912.

MARTIN J. LUND,
Attornev for Plaintiff.

Indorsed : Remission. Filed in the U. S. District Court,
Western Dist. of Washington, March 12, 1912. A. W. Engle,
Clerk. By S., Deputy.

THE KATALLA COMPANY 19

In the United States District Courts Western District of
Washington. Northern Division.

JOHN P. JOHNSON, ^

Plaintiff,

VS.

THE KATALLA COMPANY, a Cor-
poration,

Defendant. J

y

No. 1940.
Judgment.

The above entitled cause came regularly on for trial in the
above entitled Court on the 10th day of January, 1912, the
plaintiff appearing in person and by his attorney, Martin J.
Lund, and the defendant appearing by its officers and attorneys,
Bogle, Merritt & Bogle and Carroll B. Graves, Esq. A jury was
regularly empaneled and sworn to try the cause. Witnesses
for plaintiff were sworn and examined, and after hearing the
evidence adduced and the argument of counsel and the instruc-
tions of the Court, the jury retired to consider their verdict and
on the 12th day of January, 1912, the jury returned into Court
a verdict in favor of the plaintiff and against the defendant in
the sum of seven thousand, five hundred dollars, and the jury
thereupon being called each of the jurors answered, that that
was the verdict of the jury, which verdict was thereupon re-
ceived and filed.

Thereafter, within the time limited by law, the defendant
filed a petition for new trial, which petition came regularly
on to be heard on the 19tli day of February, 1912, and after
argument of counsel, the Court took the consideration thereof
under advisement, and on the 29th day of February, 1912, the
Court entered an order denying said petition for new trial upon
condition that plaintiff Avould remit from said verdict the sum
of eighteen hundred dollars, and the plaintiff on the 11th day
of March, 1912, filed a remission in this Court remitting from
said verdict the sum of eighteen hundred dollars and consenting
that judgment be rendered upon said verdict in the sum of five

20 JOHN P. JOHNSON VS.

thousand, seven hundred dollars (|5,700.00), and plaintiff's
petition for new trial thereupon being denied.

Now, therefore, by reason of the law and the premises, it
is hereby ordered, adjudged and decreed, that the judgment
heretofore entered in this cause in favor of the plaintiff and
against the defendant for the sum of seven thousand, five hun-
dred dollars (|7,500.00) be and the same is hereby vacated and
set aside, and that the plaintiff have and recover from the de-
fendant the sum of five thousand, seven hundred dollars
($5,700.00) with interest thereon at the rate of six per cent,
per annum from date hereof until paid and costs of suit taxed

in the sum of dollars

and that execution issues therefor.

To this order and judgment the defendant excepts and said
exception is allowed.

Done in open court this 12th day of March, 1912.

GEORGE DONWORTH, Judge.

Service of the within judgment by delivery of a copy to the
undersigned is hereby acknowledged this 11th day of March,
1912.

BOGLE, GRAVES, MERRITT & BOGLE,

Attorneys for Defendant.

Indorsed: Judgment. Filed in the U. S. District Court,
Western Dist. of Washington, March 12', 1912. A. W. Engle,
Clerk. l^>y S. Deputy.

THE KATALLA COMPANY 21

In the District Court of the United States^ for the Western
District of Washington. Northern Division.

JOHN P. JOHNSON,

Plaintiff,
vs.

THE KATALLA COMPANY, a Cor-
poration,

Defendant. ^

I

No. 1940.
Order.

The above entitled cause coming on for hearing before this
Court, on motion of Bogle, Graves, Merritt & Bogle, attorneys
for the defendant, for an order extending the time within which
to file a Bill of Exceptions, and said motion having been heard,
and good cause shown why the time should be extended, the
plaintiff consenting thereto.

It is therefore ordered that the time within which defendant
may file its Bill of Exceptions in this cause be, and the same
is hereby extended to and including April 10, 1912.

Done in open court this 26th day of ^larch, 1912.

C. H. HANFORD, Judge.

O. K. MARTIN J. LUND, Attorney for Plaintiff.

Indorsed : Order. Filed in the U. S. District Court, West-
ern Dist. of Washington, March 26, 1912. A. W. Engle, Clerk.
By S., Deputy.

22 JOHN p. JOHNSON VS.

In the District Court of the United States, for the Western
District of Washington, Northern Division.

JOHN P. JOHNSON,

Plaintiff,
vs. No. 1940.

THE KATALLA COMPANY, a Cor- Order,

poration.

Defendant.

Upon motion and application of the defendant therefor, and
the plaintiff consenting thereto;

It is ordered that the time for preparing, presenting and
filing the defendant's Bill of Exceptions in this case be, and the
same is hereby further extended from the 10th day of April,
1912, until and including the 20th day of April, 1912.

Dated April 6, 1912.

C. H. HANFOKD, Judge.

Indorsed : Order. Filed in the U. S. District Court, West-
ern Dist. of Washington, April 8, 1912. A. W. Engle, Clerk.
By S., Deputy.

THE KATALLA COMPANY 23

In the United States District Court for the Western District of
Washington. Northern Division,

■^

>

No. 1940.

JOHN P. JOHNSON,

Plaintiffs
vs.

THE KATALLA COMPANY, a Cor-
poration,

Defendant.

BILL OF EXCEPTIONS.

Be it remembered that on, to-wit, the 10th day of Januar}^
1912, during a stated term of said Court begun and holden in
the City of Seattle, in and for the Western District of Washing-
ton, before the Honorable George Donworth, District Judge,
the issues joined in the above stated cause betAveen said parties
came on for trial before the said Judge, sitting with a jury of
twelve persons, duly and regularly sworn and empaneled, the
plaintiff being represented by Martin J. Lund, Esq., and the de-
fendant being represented by Messrs. Bogle, Graves, Merritt
& Bogle, its attorneys, and upon the trial of said issues, the fol-
lowing proceedings, among others, were had, namely :

Plaintiff, in order to maintain the issues on his part, called
the folloAving named witnesses, Avho, being severally duly sworn,
severally testified as follows :

E. E. SIEGLEY, called as a witness on behalf of plaintiff,
being first duly SAvorn, testified as follows :

BY MR. LUND :

Q What occupation or position do you occupy now?

A Executor of the M. J. Heney estate.

Q During the life of Mr. Heney, what position did you
occupy ?

A I was his confidential clerk.

Q His secretary?

24 JOHN p. JOHNSON VS.

A Yes.

Q Have you in your possession a contract made between
Mr. Heney and The Katalla Company?
A I have a copy of it.

Q You were served with a subpoena duces tecum to bring
that contract with you?

A Yes.

Q Why didn't you do so?

A I did. I have brought all that we had.

Q All that you had?

A All that we had.

Q Didn't Mr. Heney ever have the original or the duplicate
of the contract?

A Well, this is a duplicate, I presume, but it is not marked
that way. This is the only thing I ever had in my possession.
As regards the other contract, I don't know, I presume the
original is out with the company, I don't know. That is the
only one I have seen (showing).

BY MR. GRAVES :

Q Mr. Siegley, this paper which you have produced is all in
typewriting — the signatures, too?

A Yes.

Q It is a copy then?

A I presume it is a copy. I don't think I have ever seen the
original of the 1908 contract. We have one of the originals of
the 1909 contract. There were two contracts.

Q There was an original contract and then you say there
was a subsequent contract?

A Yes.

Q All you know anything about a contract covering the
year 1910 is simply that you find a copy like this in your files?

A That is the only one I had in my possession.

Q And you have never compared it with the original?

A I never have.

Q Have you ever seen the original?

A I don't know as T have; I may have, but I can't remem-
ber that I have.

THE KATALLA COMPANY 25

Q Can you say now that this is a true copy of the original,
of your own knowledge?

A Well, I can't say, because I don't know as I have ever
seen the original contract. That is the only one I have ever
seen.

Q (Mr. Lund) This is the contract dated January, 1909?

A Yes.

Q That is the second contract?

A That is the contract covering this portion of the work.

Q In 1910?

A 1909, 1910 and 1911.

Q This is the contract — what can you say as to whether or
not this is the contract that you have followed in dealing with
The Katalla Company?

MR. GRAVES : I object to that.

Q (Mr. Lund) You have refused to give me any informa-
tion whatever in this matter?

A I was subpoenaed in the case and I was not supposed to
give any information except on the stand. I am willing to give
any information on the stand.

Q When I went down to talk to you, you could not give me
any information?

A There are some points I had no right to discuss in re-
gard to the matter that I can see.

Q And you say that this is the only contract that you have
in your possession ?

A That was the only one I had in my possession.

Q And this is the copy which you followed and went by
in your dealings with the company?

A So far as m}^ dealings with the company, I didn't need
any copy at all. My dealings with the company up to the time
that the work was being done, I didn't need any contract — my
work didn't necessitate any contract.

Q As far as you know, to the best of your knowledge and
belief and judgment, this is a true copy of the original contract?

A So far as I know, yes.

MR. LUND : Now, if your Honor please, about a week, or
several days ago, I served upon counsel a notice — I am now

26 JOHN p. JOHNSON VS.

offering this in evidence and I want to make the statement to
the Court, that some davs ago I served upon the attorneys of
record for the defendant company this notice (reading notice).
I served that notice upon the attorneys, and Mr. Graves informs
me that he has not got the original here.

MR. GRAVES: The company's office is in New York City
and this was served upon us four days ago, and the only con-
tract referred to by this notice is in the office in New York
City and we have no means of getting it here at the time re-
quested by counsel.

MR. LUND : It seems to me that upon the statement of the
witness that to the best of his opinion it is a true copy, we are
entitled to offer the copy in evidence.

MR. GRAVES: We object to the reception of it on the
ground that it is not shown to be a copy of the contract called
for by this notice. The notice, if your Honor please, reads as
follows: (Reading notice.) There has been no showing that
this is a copy of that contract.

MR. LUND : I will waive the question at this time and
will have Mr. McCord here in the afternoon. You may be ex-
cused, Mr. Siegley, temporarily, but you may remain in attend-
ance.

(Witness excused. )

JOHN P. JOHNSON, plaintiff, produced as a witness in
his own behalf, being first duly sworn, testifies as follows :

Q (Mr. Lund) You are the man that is bringing this suit?

A Yes.

Q What is your nationality?

A Fin lander.

Q What is your occupation ?

A Alining.

Q In the spring of — or in April, 1910, what were you
doing?

A I was working in Alaska in the Copper River Railroad.

Q Wlien did you get up there?

A Th<' ir,th of— left here the KUh of March.

Q 1910?

THE KATALLA COMPANY 27

A 1910, yes.

Q And you arrived in Alaska at what time?

A 16th of March, 1910, we left here.

Q And you arrived in Alaska about three days afterwards?

A 24th of March, 1910, we were in Cordova.

Q You came to Cordova?

A Yes.

Q In going up there, what people did 3^ou see and talk
with in Seattle in reference to going up there?

A We go to work there.

MK. GKAVES : I shall object to that on the ground that it
is immaterial. The allegations of the complaint are simply a
charge that this company furnished this particular powder.
The terms of employment between him and any one else is a
matter that is foreign to the issue.

MR. LUND : It is alleged, your Honor, that the defendant
was engaged in the construction of the particular railroad in
question, and that this man was employed in working upon
that road and while he was so employed they furnished to him
for use this defective powder. I expect to show under the ex-
amination all the relations that existed between those parties.

MR. GRAVES : There is no allegation here of employment.
The point I desire to make here is that we are not here to meet
any allegation other than the furnishing of this powder. Your
Honor will remember this matter came up on the demurrer to
the complaint, and the plaintiff, after the argument upon that
point, declined to amend his complaint so as to allege any con-
tractual relations between this plaintiff and the defendant, rely-
ing solely upon the proposition that the defendant had negli-
gently furnished a dangerous explosive when it knew that this
explosive Avas to be used b}^ these parties in the construction
of the work. The proposition, therefore, intended by this ob-
jection is this : That we are here to meet that issue, regardless
of the relations between the parties, and that we are not here
prepared to meet the question or to try out the issue upon a
liability arising by reason of any contractual relation existing
between this man and the defendant. Now counsel is proposing
to go into and establish by the testimony of this witness some

28 JOHN p. JOHNSON VS.

sort of relationship between The Katalla Company and this
witness. If that is to be the issue, then we are not prepared to
meet it, because the complaint was not framed in that way and
the issues are not framed. (Counsel for the defendants argues
the objection at length to the Court. )

MR. LUXD : May it please your Honor, coimseFs statement
is partly correct and partly not correct. Counsel is mistaken
in some parts of his argument, which will appear by a glance
at the complaint. At the time the demurrer was argued it is
true I relied entirely upon that principle alone which holds
that a man Avho furnishes an instrumentality which in its in-
herent danger, like an explosive, is liable to all the world for
his negligence in that respect without reference to any relation
between the parties whatsoever, but since that argument I have
had occasion to look very thoroughly into what the law is, and
that is one of the principles upon which I relied. The main
principle upon which I relied is clearly stated in m}^ complaint
(reads paragraph I of the complaint to the Court). Here we
have the relation which I am contending for ; that any corpora-
tion or man who is interested in any way in the prosecution of
an}' work, in the doing of any thing, and he agrees to furnish a
certain instrumentality for the doing of that work, he is liable
for his negligence in doing that, in furnishing that which he
agrees to furnish and which he furnished, to anyone who is
employed on the work, whether he is master or servant or what-
ever the relation is, and I have an abundance of authorities
to support it, but I haven't got my books here, but such is the
law beyond question.

THE COURT : As I understand the point to be argued at
this time is whether there were any allegations in the complaint
that make the question which you have now asked germane to
the case; that is what I would like to hear from you on.

MR. LUND: I am going to show that that man was era-
ployed to work on their road, and how his employment came
about and all about it.

THE COURT: I thought that you proposed to show that
he was emi)loyod by the defendant — that the complaint does not
state that as a cause of action.

THE KATALLA COMPANY 29

MR. LUND: No, sir; such is not my intention.

MR. GRAVES : If your Honor please, we are taken by sur-
prise by the proposition last stated by counsel and in which he
makes himself plain now, that is he proposes to show, as I judge
by his opening statement and I can't understand anything else
than, by this question he proposes to show that there was some
arrangement here by which this plaintiff was employed and
induced to labor by The Katalla Company — am I correct in
that?

MR. LUND : No, I don't intend to do so.

MR. GRAVES : Then my objection is that it is immaterial
what arrangement he had, or talk he had here, and that objec-
tion is still well taken, I take it, being entirely foreign to the
issue and tending to bring something into the trial that is for-
eign to the issue.

MR. LUND : My purpose, may it please your Honor, it to
show that this man Avas there by right ; that he was there and en-
gaged in doing that work ; that is what I intend to show.

THE COURT : We are wasting time, gentlemen. The ques-
tion is ^'What persons he talked to.'' Well, he might have talked
to a hundred friends and relations and others and it would be
all immaterial. If you can show his employment, you may show
that.

Q (Mr. Lund) Tell us, Mr. Johnson, what if any arrange-
ment was made here in Seattle between you and any other per-
son in reference to working on the Copper River Road?

A No — nothing here.

Q What arrangement — was there an}- arrangement what-
soever ?

A No — nothing here.

Q Well, I want you to tell what took place here in Seattle
before you went to Alaska, if anytliing?

MR. GRAVES: I object to that as immaterial. He said
there was no arrangement made here whatsoever.
A We were leaving —

THE COURT: I will overrule tho objection.

A (Continuing) — we left — nine together — at Roslyn,

30 JOHN P. JOHNSON VS.

B. C, and we came here and went there together to the com-
pany's office and got the tickets and go over there.

Q You got the tickets?

A Yes.

Q And went on the boat?

A Yes.

Q What if anything was said between you and any gen-
tleman here in reference to working up there?

A No.

Q Was there anything said whatsoever?

A No, never nothing said at all to me.

Q There was nothing said?

A No.

Q And then you came to Katalla — what did you do there?

A Cordova.

Q To Cordova?

A We went to the hotel and next day we get our pass
away up to Tiekill.

Q Who gave you the pass?

A One of them Katalla company.

Q Speak so that we can hear you.

A One of them Katalla Company's agents.

MK. GRAVES : I move to strike that. He can state who
it was and where it was.

MR. LUND : That may be stricken.

Q Where did you get the pass?

A Right in the office at the wharf.

Q In whose office was it?

A Katalla Company's office.

Q And what was said when they gave you the pass?

MR. GRAVES: I object to that.

A He didn't say anything.

MR. GRAVES : I object to this, may it please your Honor.

MR. LUND: There is no intention of showing any employ-
ment, and if such should appear it may be stricken.

MR. GRAVES: Then I object to it as immaterial.

THE COT^RT: When an objection is made to any ques-
tion the witness must not answer until the Court has directed

THE KATALLA COMPANY SI

him to. I do not see the materiality of the convervsation be-
tween the agent on the wharf and the plaintiff at that time,
under these pleadings.

MR. LUND: Well, I will change that question so as to
limit it.

Q What was said between you and the man there in ref-
erence to getting work?

MR. GRAVES: I object to that. This is immatc-rial and
the witness should not be permitted to relate any chance con-
versations. We have no means of knowing with whom those
conversations were held ; whether it was the agents of the steam-
ship company or the agents of the Katalla Company or the
agents of M. J. Heney Company or whom it was with. Counsel
said he had no intention to prove any employment by us and,
therefore, any conversation had is immaterial and may be
prejudicial.

THE COURT : As I understand it, one of the issues in the
complaint, arising from the complaint and answer, is whether
the defendant company was building that railroad. That is
denied. It is alleged in the complaint and denied by the an-
swer. Any testimony bearing on that point is, therefore, ma-
terial as I view the case.

MR. GRAVES : If your Honor please, whether this Katalla
Company, was building the railroad is denied; but this method
of proof — by a mere local agent on the wharf making a state-
ment— does not prove that the Katalla Company was construct-
ing this railroad. We might go into our general knowledge of
the fact that there were two companies up there constructing
different roads that had their landing at Cordova.

THE COURT : Wliat is the purpose of that (luestion, Mr.
Lund ?

MR. LUND : The purpose of the question, as I understand
— the witness — he is a foreigner and it is a little hard to get
the facts from him — he says that he went to Cordova and that
he was given a pass and told by The Katalla Company to go
up to a certain station and there he would get work and that
his wages would be so much, and that in following out that
arrangement he went up to a certain station and got work and

32 JOHN p. JOHNSON VS.

started to work. That is my understanding of what the evi-
dence will be.

THE COURT : I will overrule the objection on the ground
that the connection of the defendant company with the railroad
is denied by the answer, and the proof of what the company
was doing there on the ground and what the agent said in con-
nection with this matter is material under that issue.

(Exception noted for defendant.)

Q What was said there, Johnson, when you got your pass,
between you and the man that you got it from, in reference to
your going anywheres and getting work?

A He didn't say nothing else to me. He said he passed
me my meal ticket and when they call ^^49" we eat our dinner
down there — we get our dinner down there at '^49" — forty-nine
miles from Cordova.

Q You got your dinner there?

A Yes.

Q HoAv did you come to go in that direction — go ahead and
tell us in your own Avay how you came to go there and how you
started to work — tell us about it, Johnson — tell me about it?

A Then we helped to carry the jiowder a little while in
The Katalla Company board house.

Q I don't understand you — you went from Cordova to
"49"?

A Yes.

Q On the train as a passenger?

A Passenger, yes.

Q On the pass you got?

A Yes.

Q And they gave you a meal ticket?

A Yes.

Q And you got a meal there?

A Yes.

(2 And then what did you do there?

A After we eat our dinner we went past the river on the
ice.

Q You went across the river on the ice?

A Y(»s, and then we were on the other side of the river —
we heljK'd carry ]>owd(»r th(Te.

THE KATALLA COMPANY 33

Q You helped to carry powder?

A Yes.

Q And for how long?

A About pretty near an hour — one hour.

Q And then after that what did you do?

A We went in a box car — they had u.s to go in a box-car
and we go to Tiekill.

Q You went in the box-car to Tiekill?

A Yes.

Q What time did you get up there?

A Three o'clock that night.

Q What did you do in Tiekill?

A We were there three days.

Q Well tell me what did you do during those three days?

A Nothing.

Q Was there any arrangement or contract or agreement?

A No, no. We couldn't get any stuff up the river — they
were waiting for the boat.

Q They were waiting for the boat to come up?

A Yes.

Q Did you have any talk with any men there with refer-
ences to going to work anywhere?

A No, I didn't, but the other fellows, partners of mine,
had a talk.

Q Your partner?

A Yes.

Q And thim after three days where did you go?

A We left there and Avent uj) to "119."

Q That Avas mile 111) from Cordova?

A Yes.

Q And what was going on there?

A Th(^re was station work there.

Q Station work?

A Yes.

Q Station work is where several men together are taken
and stationed to do a certain section of tlie road, is it?

A Yes, nineteen together.

Q What's that?

A Tliere was nineteen men there tooether.

34 JOHN p. JOHNvSON VS.

Q There was nineteen men together?

A Yes.

Q That had contracted to construct that particular section?

A Yes.

Q "119."

A "119,'' yes.

Q And Avhat did you do when you got up there?

A I started drilling.

Q You started drilling there?

A Yes.

Q Well, how did you come to start drilling?

A We had a pass up there and as soon as we went there
they put me to work there.

Q Who put you to Avork?

A The foreman.

Q The foreman put you to work?

A Yes.

Q The foreman of that particular section put you to work?

A Yes.

Q How long did you work there?

A I worked twenty-six days.

Q Drilling?

A Yes.

Q And then after that what did you do?

A I quit then and I went to "123."

(i What time did you (piit there?

A I (|uit on the 27th.

(2 W'liat time?

A 2Tt]i, I (juit — I work on the twenty-six days in there and

then I <iuit next day.

(2 Vou worked twenty-six days and you quit on the twenty-
seventh?

A Y(^s.

Q What day of the month was that, do you remend>er —

well I will ask you another (piestion. Where did you go after
you (pi it?

A W(Mvent to "123."

Q To "123'?

THE KATALLA COMPANY 35

A Yes.

Q Station "123"?

A Yes.

Q How long did you work there?

A Two days and a half before the explosion.
^ Q And what day did the explosion occur?

A On the 20 th of May.

Q 1910?

A Yes.

Q During the two days and a half you had been there
before the explosion what liad you been doing?

A I was drilling.

Q You had been drilling?

A Yes.

Q Now can you tell us in your own way how that explosion
occurred and what happened?

A The fellow come in with the powder and loading stick
and they were loading — I don't know how it happen, but we
were loading the hole when it went off.

Q What were you doing?

A I was lying down at the time.

Q How far from the place where they were loading the
hole?

A Twelve or thirteen feet.

Q And who was drilling with you?

A This Fred Johnson.

Q Was there any other man witli you in your gang; in the
drilling gang?

A No, not in the same drill.

Q What was Fred Johnson doing?

A He was turning the steel and I am hammering.

Q Who else was in there beside you two?

A Ed Carson — he Avas hitting, and another fellow, I don't
remember the names.

Q What were the}^ doing?

A Ed Carson was drilling.

Q While you were doing that, you say two men came in
with the dynamite and the loading stick?

A Yes.

36 JOHN p. JOHNSON VS.

Q Who were they?

A Ed Riley and Triggs.

Q What was their position, Avhat were they doing there on
the work?

A They were supposed to be night-time blasting.

Q What connection did the^^ have with the work other-
wise— how did they come to be there?

A I don't know.

Q There was two classes of men there, wasn't there — one
class that was working on the station — the station-men that
had the contract?

A Yes.

Q And there was another class that was working for those
stationmen, wasn't there?

A Yes.

Q Yon understand me?

A Yes. We had 45c an hour.

Q What was your position; were you in on the contract
or how?

A No. I work day's pay.

Q You worked for day's wages.

A Yes.

Q Now those two men that came in with the powder and
started to load the hole, were they the same as you?

A No, they were the contract.

Q They were contractors on that station, and what appli-
ances— wliat did they bring with them to load the hole with?

A Powder and wooden loading-stick.

Q How did they go ahead in loading the hole?

A Anoth(T feUow got the knife* — he is cutting into the
powder and Ed Kiley shove it in.

Q Shove it in with the loading-stick?

A With tlie loading-stick.

Q Wliat is the ordinary way of loading powder into the
holes?

A Soni(» one have the wooden stick.

Q What have you to say wlietlier the way t]u\v were doing
it is the ordinary and safe wny to h)ad dynamite?

A Thnl is tlie only wny they ])nt tli(» powder in.

k

THE KATALLA COMPANY 37

Q That is the only way they put the powder in?

A Yes.

Q And when they were doing this what happened?

A There happen explosion.

Q And what explosion?

A I don't know.

Q You don't know what exploded?

A No.

Q But an explosion happened?

A Yes.

Q And what happened to you ?

A I heard a shot went off and then I was a little while
after that, I don't know how long, I was under the rock — a
big rock.

Q You heard the shot go off* and then a little while after
that you didn't know anything and then you found yourself
under a big rock?

A Yes.

Q How big a rock Avas that?

A About three feet long and two foot high.

Q Come down here and show the Court and jury how the
rock got on top of you?

A (Illustrating) I was against the wall like this and the
rock was on my foot and chest and hit me here on the top of
the head at the same time and I push the rock away, but I
couldn't push him this way (showing) I have to turn him
that way so that I get my foot loose, and I turn out from
under it.

Q Did you get aw^ay from the rock yourself?

A Yes, I got out myself.

Q And how^ long were you under the rock?

A I could not tell.

Q After you got away from under the rock Avhat did you
do?

A I Avas tAvelve foot higher than on the track and I thought
I would let me fall doAvn so that I could get out of there, but
my foot AAas bleeding so bad and T was afraid to fall down.

Q You were afraid to fall doAAu?

38 JOHN p. JOHNSON VS.

A Yes, and I look around like this and I don't see nobody
only I see a little of Fred Johnson's head in the muck.

Q You saw Fred Johnson in debris?

A Yes.

Q And then Avhat happened?

A Then I went on my hands and knees and when I got over
his foot he says: "oh, my leg." He says and ''It was cut to
pieces." And I says : ''Nothing the matter with your leg —
your foot's all right." I told Fred, and I says: "I hurry
up and I get those other fellows out of the muck, under the
dirt," and he never answer me — he couldn't hear me — he never
answer me at all, and then I see some fellow back there and
holler, at the mouth of the tunnel.

Q You saw another man at the mouth of the tunnel?

A Yes, and he is coming in, and I put my hands like
this and he help me out and he said: "Sure," and he take
hold with me and carry him out.

Q And left you where?

A I was laid down on the track.

Q How long did you lay there?

A I don't know how long I was there, I could not tell
how long, but long enough to get those other fellows out of
the muck.

Q How was your feeling as to pain all this time?

A I was sick and my side was sick, and hold up my foot
like this, tied up, and one fellow took the bandage and tied up
my foot here, it was bleeding so much — I Avas pretty sick.

Q One man took a handkerchief and tied up your foot?

A Yes.

Q Tell us wliat you did and what was done?

A I told them fellows, I said, '*Hurry up and get them
other fellows out of the muck."

Q I ask(M^l you wliat did they do with you, Johnson, tell
us what was done with you?

A I ask them to get —

Q After they got the others out?

A Aft(M- they get them other fellows out they put me on
the bar and carry me to tlie hospital.

Q Put you where?

THE KATALLA COMPANY 31>

A On the bar — a kind of i)lank — and carry me to the hos-
pital— four men.

Q On a stretcher?

A Yes.

Q Where was the hospital?

A About a mile from the tunnel.

Q What kind of a structure was it — was it a building or a
tent?

A A tent.

Q And who was in charge of the hospital?

A There was two nurses.

Q Men or women ?

A Men.

Q And what time of day did you get over there?

A I don't look at the time. It was pretty near four o'clock,
I guess.

Q And the injury happened about Avhat time of day?

A It was between one and two o'clock in the afternoon.

Q What doctor was there at the hospital?

A At the time that they carry me in I met the doctor
on the road ; he went up to the tunnel to see them other fellows
and he look at me but he don't say nothing, and the doctor
was coming back again after they get them all out, and he
come and fix up my foot.

Q Was your foot fixed up in the hospital after you got
there?

A No — not before the doctor come back.

Q What time did he get back?

A He come back about a little after four o'clock, I guess —
am not sure — I don't look at the time.

Q What was done to your foot when he came there?

A They wrapped my foot in some kind of stuff and carry
me in the bed.

Q Until he came hadn't you been in bed before?

A No, I Avas on the table, lying on the table.

Q Until the doctor came?

A Yes.

Q And then tliey bandaged your foot and carried you to
bed?

40 JOHN P. JOHNSON VS.

A Yes.

Q And what was done to your side and ribs?

A They didn't do nothing. I told them ^'Something in
my side" —

MR. GRAVES : I object to that.

Q ( Mr. Lund ) Nothing was done to your ribs — how long
did you remain there in the hospital — how long were you there?

A It happened on the 26th of May and then I left there on
the 19th of July, 1910.

Q And you left there in July, what date?

A 19th.

Q During the time you were there, where were you — in bed
or were you up?

A In bed.

Q And those nurses were tending to you?

A Yes.

Q And Avhen were your ribs and the chest fixed, if at all?

A I was there nine or ten days and the nurses fixed it up.

Q And the nurse fixed it up?

A Yes.

Q What did the nurse do to it?

A He put a lastic around my body.

Q And Avhat was the treatment which you received for
your foot — how was the foot tended while you were there — of
course we don't know?

A Sometimes they fix it up good and other times they
hain't.

MR. LrXI): We d(m't intend to show any malpractice
or any bad treatment or anything of the kind, but merely to
show the extent of his injuries.

(2 Then (m July 19th what did you do?

A 1 was lying at "17" then — tliey fix up my foot — the
doctor.

Q 1 thouglit you said you left the hospital and came out
on the 19tli of July?

A And 1 wcmt in the tunnel — they fix up my foot.

Q Go ahea<l and tell now how you left the hospital and
what you did aft(T that?

A 1 go out and g(»t a better doctors.

THE KATALLA COMPANY 41

Q You wanted to go out?

A Yes.

Q How did you get out?

A This fellow that—

Q Who took you out?

A Johnson.

Q This young man sitting there (pointing)?

A Yes.

Q How long had you known him?

A I know him ten years.

Q He took you out?

A Yes.

Q And tell us how you got out — were you able to walk?

A No. He carry me.

Q He carried you out?

A Yes.

Q How did you travel in getting out?

A I went on my hands and knees.

Q I mean you took the — how far was it from your hos-
pital where you were lying to Tiekill?

A Twenty -two miles.

Q And during that distance you traveled on the boat, or
how was that — how did you travel between the two places?

A Johnson he helped me on one side and another fellow,
and they take one step and I walk on one foot.

Q Did you travel that way during the whole distance be-
tween Tiekill and the hospital?

A No. I was in boat — I had a pass.

Q How far was it from the hospital to the boat-landing?

A A hundred feet, may be more, I don't know.

Q And then you came out to Seattle after a while, didn't
you?

A Yes.

Q Do you remember the day you came to Seattle?

A It was the 30th of July.

Q And then what did you do?

A Johnson take me in the hospital here with another
doctors.

Q What did he do to you?

42 JOHN p. JOHNSON VS.

A Examine 1113^ foot and fix it up.

Q What, if anj, picture or photograph —

A Yes.

Q — was taken of your foot?

A Yes, the doctors took it.

Q And then after that where did you go?

A After I fix up my foot I Avas here two days and I went
back home.

Q Are you a married man?

A Yes.

Q And 3'OU went home then a day or so afterwards?

A Two days after that.

Q You lived in Koslyn, British Columbia?

A Yes.

Q When 3 ou got home what did you do or what was
done with you?

A There was neighbors — my neighbors telephoned the
doctor right away.

Q Tell us about it.

A And the doctor come and fix it up, and the second day
they come and take a piece of bone out of the side of the foot.

Q And during that time were you up walking around or
what did you do?

A No, T Avas lying down in bed.

Q How long did you remain in bed?

A I Avas two months after I come home.

Q How often did the doctor come to see you?

A He was every day and then he come every second day
like that, as my foot get better.

Q After the two months in bed —

A Yes.

Q — what were you able to do?

A I was not able to do nothing at that time, but after I
get better I went to Avork.

Q What Avork did you do?

A I AV(»nt on the machine — running the machine.

Q You ran a machine — in the mine?

A In the mine.

Q How l(mg <lid you do that Avork?

THE KATALLA COMPANY 43

A I run machine four days.

Q And after that what did you do?

A After that I couldn't get the shoes on my foot, it was
swelled up, and the doctors said : '^You have to lay off again,
you can't work on the foot."

Q How long did you lay off then?

A Then I was lay off till the 2nd of January, 1911.

Q And what did you do then?

A Then I had — the mine superintendent sent a man after
me — he want me to go over and see him and I went over and
see him and so he says: ^'Can you work, Johnson?'' I says:
"Yes, if I get some light work. My foot is not strong for
heavy work yet." He said : '^Can you timber — do the car-
penter Avork in the mines?" — I used to be a carpenter in the
mines and I says : "Y^es, if I get light work."

MR. GRAVES: I object to this conversation between
them.

Q (By Mr. Lund) Go ahead and tell us what you did,
Johnson — don't tell us what others told you or said to you?

A Then I says: "My foot is bad yet."

Q Go ahead and tell us what 3^ou did and not what you
said?

A I said : "All right, if I get light work."

Q What work did you get?

A I was building chutes in the mine.

Q What work was that, light or heavy?

A That was light work.

Q How long did you do that?

A I was there nearly three mouths.

Q And then after that what happened?

A They put me in the heavy work — heavy timbers — I
couldn't stand it.

Q What did you do then?

A I went to Washington and took a homestead.

Q You came over to Washington and took a homestead?

A Yes.

Q How long did you remain there?

A I was there nine months.

Q And Avhat work were you able to do there?

44 JOHN p. JOHNSON VS.

A I was clearing a little land.

Q Have you worked wages or earned any money except
what you were telling about in the mine?
A No.

Q Now, will you take your shoe and sock off and let the
iurv see vour foot?
(Witness does so.)

A And the rock struck right there and broke the bone
and this bone was split.

Q Where was it broken?

A There (showing).

Q And where is it where the bone was taken out?

A There (showing).

Q And what is the feeling in your toes now?

A These two toes are dead — I can't move them at all.

Q To what extent can you use that foot now?

A I have to be careful. It hurts right there (showing).

Q Is there any pain in it now?

A Yes; right there, mostly, the pain is, where the bone
is gone.

Q Can vou do heavv work at this time?

A No. I can't work in the machine any more — I can't
take care of machines any more.

Q You were mistaken in the date of the month that you
came to Alaska — what month was it you came to Alaska —
when you Avent up there, Johnson, — did you go up there in
May or April?

A April.

Q If you said ^Fay, you intended April?

A April wh(»n we go up there.

Q You went up in April?

A Yes.

CROSS-EXAMINATION.

Q (Mr. Graves) Where do you live now, Mr. Johnson?

A Roslyn, B. C.

Q You are living there now?

A I was in Washington — Ste])hens county.

THE KATALLA COMPANY 45

Q Making a homestead in Stephens eounty, Washington —
that is the northeast part of the state?

A Yes, close to Northport.

Q When did you come down to Stephens conntj?

A I went there last spring.

Q And took up a homestead?

A Yes sir.

Q You are now engaged in farming on your homestead?

A Yes.

Q When was it that you went to Roslyn from Seattle?

A It was 1910.

Q What month?

A 28th of July, or 29tli of July.

Q You went up there in July?

A Yes.

Q You got down here about the 27th of eTuly you say,
or the latter part of July from (^ordova?

A We left on the 25th— we left Cordova on the 25th.

Q How long did you stay in Seattle?

A I Avas here two days.

Q Did you have an operation on your foot while you were
here?

A No, just to take pictures and I was with the doctors
and he fix it up.

Q And then you went home in Roslyn?

A Yes.

Q And wliile you wer(^ u]) tlierc^ at Roslyn you had a phy-
sician fix your foot, did you — a doctor?

A Yes, the doctor came up and fix my foot.

Q Is the doctor here, ^Ir. Johnson?

A No — he is in Roslyn, B. C.

Q Did you come to Seattle again after you went to Roslyn?

A No.

Q Were you down here at all in the fall of 1910?

A No, I have never been here sinc(^ I left here.

Q Where were you when you commenced this suit?

A I was — it was at that time when I Avent to Roslyn.

Q You commenced it when you were at Roslyn?

A Yes. I saw this fellow her(» when I went.

46 JOHN p. JOHNSON VS.

Q You saw Mr. Lund before you went?

A Yes.

Q And YOU were up at Roslyn when you commenced this
suit later on — now how long were you or when did you come
down to Cordova from Tiekill?

A The 22nd.

Q The 22nd of July?

A Yes.

Q You left Tiekill on the 22nd of July, and came down
on the railroad to Cordova, did you?

A Yes.

Q And then you took the boat at Cordova?

A On the 25th.

Q And came to Seattle?

A Yes.

Q What station was it you were working at when you
were hurt?

A "123."

Q ''123" above Cordova — who liad charge of that station?

A Sam Rolliu, he is foreman.

Q Sam Rollin is dead now, is he?

A I don't know.

Q You heard he was dead?

A I heard he die, I don't know.

Q Y(m were not one of the stationmen working with Sam
Rollin, were you?

A Eh?

Q Yon were not one of the stationmen working with Sara
Rollin?

A No, no.

Q Sam Kollin had ])artnors in that station work?

A Yes.

Q Tiy station work is meant that sub-contractors take a
station and do the work for the contractor, that is correct,
is it?

A T sui>|)ose so.

Q How's that?

A T don't know, T guess that is the way they do it.

Q That is the way it is done?

THE KATALLA COMPANY 47

A Yes.

Q Who hires you — Sam Rollin?

A Yes.

Q You were working by the day's work for Sam Rollin?

A Day's pay.

Q By day's pay for Sam Rollin?

A Yes.

Q Do you know who was the contractor on this work?

A Yes.

Q Who was it?

A Ed Riley and Sam Rollin and I don't know all of their
names?

Q Who was building the whole road — what contractor.
Do you know Heney?

A Yes.

Q Heney had the contract for the whole of the road?

A Yes, I guess he got it, I don't know sure.

Q That was your understanding, wasn't it?

A Yes.

Q And Sam Rollin and his partner had this station work
and you were working for Sam Rollin?

A Yes.

Q How long had you been working for Sam Rollin?

A Two days and a half — a little over.

Q How long had you been working before that time for
him — had you been working before that?

A I work at 110.

Q For whom?

A George Raildy, his name is.

Q He was a sub-contractor, was he — he had station work?

A Yes, he's got station work too.

Q What work did you do for him at 119 — what character
of work?

A I was drilling holes.

Q You are a miner of some experience then?

A Yes, I was a miner.

Q Drilling in rock for the ])urpose of putting powder in it?

A Yes, but I don't handle no powder.

48 JOHN p. JOHNSON VS.

Q You drilled the hole and the powder was put in and
exploded?

A Yes — another fellows come there.

Q That was the way you did the work at 119 — and at 123 —
you did the same kind of work, did you?

A Yes, I was drilling there.

Q You were drilling there?

A Yes.

Q What kind of work were vou doing there — tunnel work?

A Tunnel work.

Q You Avere driving a tunnel from the hillside?

A Yes.

Q A rock tunnel?

A A rock tunnel.

Q During what hours of the days did you work there?

A Ten hours.

Q During the daytime.

A The daytime, yes.

ft. / ft,

Q Was til ere any night crew?

A Yes, some fellows in the night.

Q But you Avere on the day crew?

A Yes.
Q XoAv when would you set off those charges in the tunnel —
when would this powder be exploded?

A The powder was exploded on the third day I was work-
ing there — the third shift.

Q When would they shoot the powder — what times?

A They been shot most of the time at the night time.

Q At night time?

A Y(^s.

() Would they shoot them any in the day time?

•^ t ft t

A Not much — a little bit sometimes — they shot them day-
time too, but not at that time when I was there.

ii Did they shoot any that day tliat you were there?

A Only that last day when I was hurt.

Q That last day ynn wer(» hurt they shot that day during
the daytime?

A Y<>s.

Q What time of day?

THE KATALLA COMPANY 49

A Between one and two o'clock.

Q During the morning?

A Afternoon.

Q During between one and two o'clock?

A Yes.

Q Where did you go when they shot?

A It blowed me to one side of the tunnel.

Q You would go out to the tunnel to one side? Now if
this is the face back there — if this would represent the face of
the tunnel (illustrating), you were driving holes into the rock
face of the tunnel, were you?

A Yes, another fellow was driving hole.

Q And then this powder-man would come and put powder
in there, in the holes?

A Yes.

Q And when the powder was put in the holes you would
all go out to one side and they would shoot that powder?

A Yes, whenever they got ready.

Q When they got ready they would shoot?

A Yes, and go away.

Q Now did they shoot that powder — did they get ready and
shoot some powder on the day you were hurt?

A. No.

Q Did they shoot any powder that day at all?

A Not at that time — not before the time of the explo-
sion, no.

Q Had they shot any that morning at all?

A. No.

Q Had the}^ shot any the night before?

A I don't knoAV sure.

Q You don't know as to that?

A I don't knoAv ; I don't work in the night.

Q Was the muck there — jou know wliat 1 mean — was the
muck all out when you went to Avork in the morning?

A No, some of the muck in there yet.

Q Who took the muck out?

A Some of the car-iiuMi — some of the men.

Q Some of the muckers?

A Some of the muckers.

50 JOHN P. JOHNSON VS.

Q Did you go to work drilling before the muck was taken
out?

A We muck a little bit ourselves to get the place started
ready for drilling.

Q How manv holes did vou drill that dav — vou, vourself —
in how many holes did you drill?

A We didn't drill that day — that was the last hole we were
on that day.

Q You yourself, I mean?

A Me and my partner.

Q Who was your partner?

A Fred Johnson. That big man (pointing).

Q And he drilled one da^^?

A Yes.

Q Only one?

A Yes.

Q How many drillers were there besides you and Fred
Johnson?

A 1 didn't look to see how many there were.

Q How many was drilling in that tunnel that day?

A I don't know. I guess there is two holes in the face,
I don't know sure — I don't look there, and we were in the bench
— about thirteen and fourteen feet in aliead — away.

Q Which way were you drilling, towards the north side
or east?

A In the tunnel.

Q Wliich way Avas the tunnel heading, towards the north
side or the east — I will ask you this way, Mr. eTohnson — what
part of th(» face of the tunnel were you drilling — on the right
liand side ;is y(m faced the face or on the left hand side?

A we were on the left-hand side.

(2 That is, if this table Iktc was the face of the tunnel, you
would be drilling over that way, on the left-hand sid^?

A l*r(4ty near down hill.

Q Down bill?

A Yes.

Q What do you mean by down hill?

A There was twelve feet.

Q Yon were down bill drilling on tbe down bill?

THE KATALLA COMPANY 51

A Yes, straight down.

Q You and Fred Johnson?

A Yes.

Q Who else was drilling that day at that time?

A I don't know — Oh* and Carson — I know the fellows'
names.

Q Carson ?

A Carson.

Q Is he here?

A Yes, Carson.

Q Anybody else?

A There was three or four others, but I don't know the
fellows' names.

Q Are there any of them here?

A No, not those others, only Carson.

Q Well, now, where was Carson?

A Carson hitting — heading.

Q He was ahead of you?

A He was in the heading, away farther ahead.

Q Was he to the right or way ahead of you?

A He was on the same side that I was but a little farther
ahead.

Q A little farther ahead?

A Twelve or thirteen feet.

Q That is, ,you had blown it (mt up there (illustrating),
you had cut out a piece from the tunnel and here there was
still some down here (illustrating), and you were digging down
holes to blow that out?

A Yes.

Q And he was still farther over towards the head or the
face of the tunnel, drilling a hole into the face?

A Yes.

Q And he was ahead of you on the left-hand side?

A Yes.

Q And who was with him?

A I don't know, I don't remember his name.

Q Is his partner here?

A No, sir.

52 JOHN p. JOHNSON VS.

Q Is there anybody else here besides the two men that you
named that were tlere that day — is there anybody else here?
A There is only the two men here.

Q Those two men vou mentioned are the only ones that
were there?

A Yes.

Q Now you and Ft'^aI Johnson then were down here drill-
ing this down hole — what \yere you doing — were you holding
the drill?

A No, I was hammering.

Q You were using the hammer?

A Yes.

Q And Fred was holding the drill?

A Yes.

Q You were hammering and he ^yas holding the drill —
were you doing that when the explosion occurred — were you
hammering when the explosion occurred?

A I was hammering at that time when the explosion —

Q When the explosion occurred?

A Yes.

Q Just come down here and show me how Fred Johnson
stood and what you did?

A He would sit down on an empty powder box, like this,
and turn it between his two legs.

Q And you were standing, swinging the hammer?

A Yes.

(J If you were over on the left-hand side, your back was
towards the rest of the tunnel, was it?
A No, my back was out of tlie tunnel.

Q So that you were standing and swinging this way and
he stood ovc^r here and turned tlie drill and you were standing
and swinging tliis way on t]w left-hand side?

A Yes.

(} Whnt was Carson doing?

A They were drilling.

Q WliJit (lid lie do — did lie hold the drill or nse the ham-
mer?

A He wjis lioldiiiii- the drill.

THE KATALLA COMPANY 53

Q He was sitting on a box holding the drill up near the
face?

A Yes.

Q Now, from where you were could 3^ou see anybody else
in the tunnel, what they were doing?

A I saw Carson and his partnei was drilling, and the
other fellows was inuckini> back.

Q That was all you could see that was taking place?

A Yes.

Q You could not see anything else going on in the tunnel?

A Not at that time.

Q As I understand 3 ou, you had mucked back at the place
where you could drill the hole?

A I mucked back a little in the first — in the morning.

Q They had left piles of rock all around where you were
drilling?

A Yes.

Q And you and Fred Johnson got down into this hole
which you had mucked out and were drilling aAvay?
A Yes.

Q And the muckers were carrying out this loose rock that
had been blown out the night before?

A Yes, they were mucking back and ahead and th(^ cars
were running out.

Q A mucker means one who takes out the loose, broken-up
rock that has been blown out by the explosion?

A Yes.

Q Now, at the time that this explosion occurred — besides
those drillers and muckers — could you see — besides Carson and
his partner — could you see other drills at work?

A No. I saAv them after dinner, but they weren't drilling
after dinner, they were mucking back.

Q Was there an explosion — did they shoot off any loads
at dinner time?
A No.

Q. They didn't drill after dinner — just you four were all
that were drilling after dinner?

A Yes, and the others were mucking back.

54 JOHN p. JOHNSON VS.

Q Whereabouts were those holes which you say that
Riley—

A About twelve feet on the right-hand side — twelve or thir-
teen feet from me.

Q Riley?

A Ed Rilev.

Q Anvbodv else with him?

A His partner.

Q Who Avas his partner?

A I don't remember his partner's name. Rex or something
like that. I don't remember his name.

Q Whereabouts was he at work?

A He was loading a hole in twelve or thirteen feet on the
other side down.

Q He was over on the other side of the tunnel, on the right-
hand side, twelve or thirteen feet from you?

A Yes.

Q Did you go over there where he was?

A No.

{} Did your partner go over there where he was?

A No.

Q What time did Riley come there?

A Right after one o'clock.

Q It was after one o'clock?

A Yes.

(J What did he have?

A 1 was looking behind my back — I lieard some one coming
and I saw Riley come Avith a loading stick in his hand and the
box of poAvder in his arm.

(I The powder and the loading stick in his hand?

A Yes.

Q Who liad <l]illed the liole oA'er there where lie went to
work?

A This fellow that was ahead — Carson and the other fel-
lows.

ii When had they drilled it?

A TImw drilled that hole before that day.

Q I{ef(»re that day?

THE KATALLA COMPANY ' 55

A Yes.

Q Hadn't that hole been exploded the night before?

A Yes— that is Avhat I don't know— I didn't see them— but
they say that it didn't break.

Q That is, this particular hole, Johnson, had been loaded
and the fuse lighted but it didn't break out?

A No, sir.

Q That is, the powder in there didn't blow out — is it not
a fact that Kiley was trying to take out the powder out of that
hole that hadn't blown out?

A I don't know.

Q He may have been, so far as you know, trying to remove
the powder out of that hole that didn't blow out?

A I don't know. I didn't see him. I don't know. I seen
him loading — I saw him putting more powder in.

Q You don't know what he was doing?

A I saw him putting pOAvder in the holes.

Q When?

A After dinner. After we came back after dinner — a little
after one o'clock.

Q As I understand you, you heard him coming in first?

A Yes.

Q Then you looked over your shoulder and saw him carry-
ing a stick and some powder?

A Yes.

Q And that was the last you saw of him?

A No; I saw him he was putting powder in.

Q You saw him putting powder in?

A Putting powder in and loading the hole.

Q How long before the explosion?

A I don't know exactly how hmg but it was only a little
while. I was hammering — I didn't stop working.

Q You didn't stop Avork at all?

A No. I just saw him, that was all, a little ways off.

Q The fact is you saw him go over to that hole, and that
was his post, and you paid no more attention to it?

A That's right — that's right — and it was none of my busi-
ness at all.

Q All yon knew is tliat you saw him with the powder and

56 JOHN p. JOHNSON VS.

loading stick, going over to the hole, and that is all you know
about it, isn't that about correct?

A Yes, I A\ as drilling — I was doing my work.

Q You paid no attention to what he was doing?

A I saw him just what he do.

Q Y^ou know that this hole which he went to didn't break
out the night before, did it?

A Y^es. That is what they say. I don't know. I heard
that but I don't know sure. I didn't see him blast it the night
before.

Q You know that the hole, whatever it was, had been bored
and drilled on the daj^ before, hadn't it?

A I don't know sure because I didn't see him.

Q You hadn't gone over there at all?

A No, only in the day time.

Q Y^ou had during the day?

A Y>s.

Q Had Fred Johnson gone over?

A No.

Q Had Carson gone over?

A No, they were day time.

Q They were, like you, attending to their business, drill-
ing holes?

A Yes, in the day time.

Q When this explosion occurred what direction was your
back, towards the hole where Riley was at work — how was your
back witli reference to Riley?

A That hoh^?

Q Yes.

A I was sideways, like that (showing), maybe two or three
feet furtlier back. That hole was like that (showing).

Q Did he have any dynamite caps with him?

A I don't know. I don't see him — I not so close, and that
is all I see him, lie was putting powder in.

Q Did you see what i)o\vder it was that ex])loded, whether
it was in the box or in the hole?

A That powder was in the box.

Q The ]M>\v(ler that exploded was in the box?

A No, the powdcM- was — the box he ])ut in the hole.

THE KATALLA COMPANY 57

Q Do you know what exploded — w here the powder was
that exploded?

A No.

Q You don't know whether it was in the hole or in the box?

A No, it was in the hole.

Q It was in the hole?

A Yes.

Q How do you know?

A Because the rocks come on the top of me.

Q The rocks came on the top of you?

Q But there was loose rock all around you?

A Yes, but the hole was spread.

Q Then your idea is that Riley when he was loading this
powder in the hole set it off some way?

A No, the powder was in the box after the explosion.

Q How's that?

A The powder was in the muck — was in the box — the box
was mashed to pieces, but the powder was in the muck.

Q Did you see the box after the explosion?

A Yes, no, I don't see no box.

Q Did you see where the explosion took place after you
were hurt — did you go there and examine for the explosion ?

A No, sir ; I went on my hands and knees to see this partner
of mine.

Q You went on your hands and knees to where your part-
ner was?

A And over his foot.

Q What I mean is that you didn't go over there — you don't
knoAV whether the powder that Riley had in the box — whether
that exploded?

A No, not in the box.

Q You don't think that it did?

A No. The hole was break.

Q. The hole was broke?

A Yes.

Q That is, the hole in the face of the tunnel was broke out?

A There was a little ways from the face, about seven or
eight feet from the fac(^ — that hole that he was loading — that
was went off.

58 JOHN p. JOHNSON VS.

Q That oue went oft"?

A Yes.

Q I would like to understand you. You were drilling here
on the down hole?

A Yes.

Q There was a hole over there Avhich you say did not break
out?

A The night before.

Q Was that a down hole or a side hole?

A A side hole.

Q A side hole in the face of the cliff?

A That was not in the face. That was right in the bottom,
that hole like this.

Q It went in that way in the bottom?

A Yes.

Q Instead of going down, it went sideways into the
bottom part and that hadn't been taken off?

A Yes.

Q How high was the bottom that hadn't been blown off?

A Six or seven feet.

Q That is, in going through that tunnel they would
blow out the upper part and then they would come along and
blow out the bottom part?

A When the bottom got too high then they put, about
twelve feet, holes in the bottom and blow the bottom lift.

Q So as to make the bottom of the tunnel level?

A Yes.

Q You were drilling a down hole on the bottom and Riley,
about twelve feet over there, was drilling?

A He don't drill.

Q Well, was loading a side hole in the bottom?

A Yes.

Q That was the hole that didn't break out the day before?

A Yes. I don't know for sure.

Q That is wliat you understand?

A Yes, I understood it. I am not sure what hole it was.

Q Now, tlien, wliere the ex])losi()n occurred, was in that
side hole; is that riglit?

A Yes, that side hole — the lifter.

THE KATALLA COMPANY 59

Q What is called a lifter, or side hole — it is called a lifter
because it lifts up the top?

A Yes.

Q That is where the explosion occurred, was in that lifter?

A Yes.

Q And it was in that lifter that you understood, the powder
didn't break out the night before?

A Yes.

Q Did you see that lifter go off, or explode?

A No.

Q Your back was towards him?

A No, I was just sideways.

Q Well, he was on the level?

A He was on the same level I was, only a little higher,
about six or seven feet higher.

Q But you were standing back and sideways to him this
way (showing), drilling, and he w^as over there, wasn't he?

A No, he was like this (showing). It was about three feet
higher than that.

Q This table is about twelve feet long — now come down
here — you were over there on the left side — we will say this was
the box on which Fred Johnson was sitting holding the drill,
and that would be the drill (illustrating), now where were you
standing when you were drilling?

A I was standing like tliat, and my partner was there
(showing).

Q And you were hammering with the drill right there?

A Yes. ^

Q And as I stand here at the table, this would be the side
hole where he was working?

A Right there by that corner he was loading tlie hole.

Q And where was Riley?

A I dou't know.

Q You don't know wlio was with him — was Riley killed by
the explosion ?

A No, there was nobody killed. Riley was hurt though.

Q You don't know where he is?

A I don't know.

60 JOHN P. JOHNSON VS.

Q If there was any powder in this lifter hole, as you call
it, it would have been in there over night — hadn't it?

A I don't know anything about it.

Q It must have been in there over night?

A I don't know.

Q There had been nobody in there loading it during that
day?

A There was Riley was loading right after dinner.

Q In the forenoon he was not ?

A No — nobody in the forenoon.

Q No one?

A No one touched the hole.

Q Did you work over there towards that hole during the
forenoon ?

A No sir.

Q Did anybody drill over there towards that hole in the
forenoon.

A No sir.

Q Did anybody muck away from in front of the hole?

A Only on the left-hand side a little farther ahead they
were mucking back.

Q Nobody working over on the lifter side during the fore-
noon at all?

A No sir.

Q They left that alone, didn't they?

A Yes!

Q Well now, Johnson, is it not a fact that the reason you
did not work over there and the reason tlie muckers didn't work
over there was because —

A (interrupting) The muckers worked right between me
and that hole — the missed hole.

Q And that missed hole?

A I don't know what hole it is.

Q Is it not a fact that the reason you did not work over
there on that side and nobody worked on tliat side was because
it was known that there was powder in that missed hok^?

A Excuse m(% there was a hoh* was being blast — I don't
know.

THE KATALLA COMPANY 61

Q You knew that there was a hole over there, didn't you?

A Yes, I saw there was a hole there.

Q And you knew that it had been missed, too, didn't you?

A I didn't know whether it was missed — I was mistaken
there — I didn't know whether it was missed, but they been
blasting that hole before — I don't know wliy — I just called them
holes that were missed tliat didn't break — that any miners eall
it in the mine like that, you know, that is we call it, if there
was a hole being blast and it don't break, they called that a
missed hole.

Q If there was a hole there and it hadn't broken out you
would call it a missed hole?

A Yes.

Q But there was nobody working over there near that
missed hole?

A Yes, they being mucking and drilling ahead and back
of the hole.

Q That is, they were not drilling on the down hole but they
were drilling up on the face of the tunnel on the upper part —
this missed hole was on the down part of the tunnel, wasn't it —
it was on the bottom?

A No, that hole he was loading was on the side.

Q But it was on the bottom part of the tunnel?

A Yes, the bottom part.

Q And where they were drilling on that side of the tunnel
is not on the bottom part but at the upper part, that morning?

A This was drilling rigiit in the heading.

Q How did you happen to hear about tliat hole not break-
ing out?

A I heard after it went otf — after I was in the hospital,
but I don't know sure if they being bhisting or what they were
doing.

Q You heard that in tlie hosi)ital?

A Yes, but 1 don't know anything about it.

Q Didn't you hear it in tlie tunnel that morning?

A No, nobody say nothing about the hole at all, only at
the time I seen it was loading when they put powder in.

Q Be sure now that I don't misunderstand von. This

62 JOHN p. JOHNSON VS.

lifter hole iu the side, where Riley went, was drilled on the day
before the explosion, wasn't it?

A Yes, the same day when Ave started to work.

Q How lon<» had you been drilling in this particular hole
before the explosion occurred on that day?

A I was drilling all the morning.

(2 How deep Avas the hole Avhen the explosion occurred?

A That hole Avas drilled about elcA^en feet.

(} Had you drilled that entire distance of eleven feet that
dav?

A Yes.

Q In other AAords, the rock througii Avhich you were drill-
ing was of such hardness tliat it took half a day and over to
drill eleA'en feet?

A Yes, that's right.

Q HoAv long AA'as it after Riley and his partner came into
the tunnel before the explosion occurred — hoAv much time AAas
there betAveen his coming and the explosion?

A I could not tell exactly the time — I didn't look at any
time, but it can't be more than fifteen or twenty minutes.

(2 About fifteen or tAventy minutes?

A Yes.

(^ During that fifteen or tAventy minutes Avere you drilling
all the Avhile?

A Yes.

Q So that this may ^et into the record, I wish to go over
it again. In drilling, your i)artner or your assistant, Fred
Johnson, hidd the st(^l drill in his hand?

A Yes.

(I And tAvisted it in his hands as you struck it with the
haninier, is that correct?

A Yes.

(2 Carson and his partner wen^ drilling in the same Avay?

A No. They were drilling — hcniding like this.

(2 Instead of doAvn, they Avere drilling straight into the
heading?

A Yes.

(2 Hut they w(Te working in this way, too?

A Yes.

THE KATALLA COMPANY 03

Q With the drill?

A Yes.

Q Carson was iisiii^ the haiuiner, was h(^?

A No, his partner was using the hammer.

Q And he was holding the drill?

A Yes.

Q Now in doing your work, Mr. Johnson, in working with
that drill you have to keep your eyes on the drill, don't you?

A Yes.

Q And the man who is operating the drill watches the
drill to see that he keeps it in the right position, doesn't he?

A Yes, because they have to hold them steady.

Q Each one of you is bound to give his attention to that
particular work in order to avoid an accident?

A A man that is used to the hammer don't keep his eyes
on it all the time — you have a chance to look around.

Q You have a chance sometimes to look around?

A Yes.

Q When you saw Kiley come in what did he have under
his arm?

A Powder and a loading stick.

Q What was the powder in?

A In a box.

Q Was the box covered?

A No.

Q What kind of powder was it?

A I didn't see it. I didn't look what kind of powder he
has got. ,

Q Did you see any powder?

A I see the powder in there but T didn't —

Q What was it wrapi)ed in?

A In paper, like powder, you know what kind powder is.

Q How near was Kiley to you?

A H(^ was ten feet — ten or eleven feet.

Q Ten or twelv(* feet?

A Yes. When I looked he was behind my back.

Q What did he do, the first thing when he came in?

A When he came in with the powder he was loading the
hole.

64 JOHN p. JOHNSON VS.

Q When he first came in there that afternoon?

A He started to load the hole.

Q What did he do?

A He put powder in the hole.

Q What powder did he put in?

A That powder he was carrying.

Q Did you see the powder in his hands?

A No, I didn't see it in Riley's hands, but I saw it in his
partner's hands.

Q You saw it in his partner's hands?

A Yes.

Q Did you see him put it in the hole?

A Yes.

Q Did 3^ou see them ram it with anything?

A I don't understand.

Q Did 3"ou see them push it with anything?

A Yes sir, with the loading stick.

Q They pushed it with the loading stick?

A Yes.

Q You saw that, did you?

A Yes, I saw that Kiley was pushing it in.

Q You saw Riley pushing it in?

A Yes.

Q How long was that before the exi)losion?

A Three or four minutes.

Q Three or four minutes?

A Yes.

Q Did you see him doing any tiling during that three or four
minutes before the explosiim, anything else?

A No.

ii So that th(^ last thing that you saw Avas Riley pushing

some powder in this hole thrcM^ or four minutes before the ex-
j>l()sion, is that correct?

A Yes — ])ush th(» powder — at that time I was looking he
was loading.

(^ Yon were looking at them, and thr(»e or four minutes be-
fore th(* ex]>losion you saw him ])ush it in with n loading stick?

A Y(s.

Q With the lojuliiig rod?

THE KATALLA COMPANY 65

A Loading stick, yes.

Q And after that you didn't see anything more that oc-
curred?

A No.

Q Did you yourself see what caused the explosion?

A No, I didn't.

Q Do you know whether that explosion occurred in the hole
or occurred in the box of powder that was sitting beside John-
son and Kiley?

A No. I saw after 1 was on hands and knees and the ex-
plosion, th(^ powder was in the muck — some powder w^as in the
muck.

Q You saw some powder in the muck?

A Yes.

Q You are sure that the powder in the box did not explode?

A No.

Q It was the powder in the hole that exploded?

A Yes.

Q Then the jar and the throwing of this rock around there
did not explode the powder in the loose rock, did it?

A No — in the hole — it break that hole.

Q But you say that lying in the muck you saw powder
that was not exploded, didn't you?

A Yes, some powder left.

Q That is, there was not any powder, till Riley came in,
in that muck?

A No.

Q So that the powder which you saw in the muck was
powder that was in the box that Rile}^ brought in there?

A Yes.

Q And that powder did not explode?

A Not in the muck.

Q What caused it to go over there — what threw it over into
the muck, do you know — was it the explosion?

A Yes, the explosion.

(J The ex])l()si(m in the face of the tunnel threw this
powder in the box over in the muck, did it?

A Yes, and it break that box.

Q But it didn't exi)l()(le that powder in the muck?

66 JOHN p. JOHNSON VS.

A No.

Q So that the explosion that occurred there, occurred in
this lifter hole where Riley was working — Riley was loading
this lifter hole, wasn't he?

A Yes.

Q And the explosion occurred in the powder in that hole?

A Yes, the explosion was in the hole.

Q And it occurred Avhile Riley Avas working at that hole.
When you got to Cordova going up there, you say you got a
pass at the steamship wharf?

A. Yes.

Q You went up to Cordova on the Alaska Steamship Com-
pany's ship, did you?

A Yes.

Q You know that the man that you went to at the wharf
was M. J, Hene} 's agent, don't you?

A No, I don't.

Q You don't know who he was, do you?

A It was not Heney's.

Q You don't know?

A It was not Heney's.

Q It was at the office on the wharf?

A No, it was The Katalla Company's office there.

(J At The Katalla Company?

A Yes.

(2 It was not on tlie wharf?

A Yes, it was on the wharf.

(J After til is accident and after you came down to Cordova
you released Heney —

MK. LrXI): I object to tliat as being improper cross-
examination. I did not in()uire as to any release. It is not
]y,\v\ of my case in chi(»f. Tlie release is ])leaded in the answer
and denied in the re]dy, and I think it is ])art of tlie defense,
and I object to it as inii)ro])er cross-examination.

.MK. (iKAVKS: 11 is ujion another ])oiiit. I do not mean
this foi- the pnr]M)se of showing the rel(»ase at the present time,
:in(I I wonbl like to complete my (luestion.

(2 Yon did sign a j)ap(M' for M. J. Ileney, the contractor.

THE K AT ALL A CO Ml' ANY 67

at Cordova, didn't you, on the 22d day of July, just before you
came out?

A Yes.

Q I will show you this paper and I will ask you if that is
your signature? (showing).

A That is my name.

Q You wrote that, didn't you?

A Yes.

Q You signed that at Cordova?

A Yes I signed that, that is my name.

(I)oeunient identified by witness is marked ^'Defendant's
Identification No. 1.")

Q (Mr. Lund) iVt the time you came there on the job,
Mr. Johnson, at section 123, and from the time you commenced
to work until the day of the explosion, what did you have to do
with or did you handle anj^ dynamite there?

A No.

Q Did you see the dynamite?

A No.

Q Did you at any time know there was any defect in it?

A I didn't know — I didn't see the dynamite, only that day
I seen the box that Riley carried in.

MR. GRAVES : I object to that— to the form of the ques-
tion— to the assumption contained in the (question that there is
an}^ allegation here that he did know of any defect in it, or any
proof that there was any defect in it. It is a mere assumption.

THP: COITRT : I take it tliat that objection relates to the
order of proof. I suppose counsel for plaintiff intends to oft'er
some evidence showing defective dynamite. I will overrule the
objection.

(Exception noted for defendant.)

A I didn't know — I didn't see tlie dynamite, only that day
I seen the box that HWej carried in.

THE COT'RT: You used the word 'Slynamite," and coun-
sel for defendant used the word "powder." I would like to know
Avhether there is any difference in the meaning of the two terms
empo^^ed here.

MR. LUND : I mean dynamite that comes in sticks, ordi-

68 JOHN p. JOHNSON VS.

narily called dynamite. I suppose Mr. Graves means the same
thing.

MR. GRAVES : I used the word in the generic sense of ex-
plosive and not to distinguish between black powder and dyna-
mite.

Q You say you didn't know there was anything wrong
with the powder at that time?

A No.

Q When we speak of powder we mean dynamite sticks?

A Yes, dynamite sticks, and that I saw there in Riley's box.

Q You saAV the sticks in Riley's box as he carried them in?

A Yes.

Q What kind of sticks was it?

A It was about eight or nine inches long and about three-
quarters of an inch or an inch through.

Q About an inch in thickness?

A Yes.

Q They were round?

A Round.

Q Wlien you speak of muck, what do you mean by that —
in the mine?

A Dirt — rock.

Q You mean —

A Loose rocks.

Q You mean loose rocks that is blasted out of the tunnel?

A Yes, that have been blasted a couple of days ago.

i} Wlien you commenced to get your hole ready in the
morning you ch\ar it away — the muck around there — the loose
rocks?

A Yes sir, the first thing.

il IIow large a depression was it you started to drill in?

A About tw(dve feet.

(2 I mean from the surroundings — how much below were
you on the levcO from the hole that Riley was loading there?

A IJiley was a little higher up, about six or seven feet
higher uj).

(2 Von say that he brought a loading stick with him?

A Yes.

THE KATALLA COMPANY 69

Q And that he was using the loading stick to push the
powder in with?

A Yes.

Q What was the loading stick made of?

A Wood.

Q You spoke of having heard in the hospital that that hole
that they were loading had been blowed out — what did you
mean by that?

A That was being blasted the night before last.

Q It was being blasted out?

A Yes.

Q And what happened to it?

A It don't break.

Q Was the dynamite still in there or how was that?

A I don't know. I don't see him, but he said the hole went
off, but it don't break and they had to blast it over again.

Q (By Mr. Graves) You heard that the dynamite hadn't
burst out this hole when it was exploded the night before — you
say that is what you heard in the hospital?

A Yes, that is what I heard.

Q Whether or not the dynamite was in that hole had been
exploded, you do not know, do you yourself?

A No, I don't know, but I heard it don't break.

SAMUEL MURCHISON testified as follows:

"Q (By Mr. Lund) You reside in the city?

A Yes.

Q In 1910 what work were you engaged in?

A On the construction of the Copper River & Northwestern
Railroad.

Q What position did you hold?

A I was superintendent for the contractor.

Q Who Avas the contractor?

A M. J. Heney.

Q Who was the contractees — the one that let the contract
to Heney — from wliom did Heney have a contract?

A From The Katalla (^ompany, I believe.

70 JOHN P. JOHNSON VS.

Q Who supplied the explosives that were used on the con-
struction of the road?

A So far as I know. The Katalla Company.

Q And do you know where Section 123 was?

A Mile 123.

Q Where was that?

A It was on the line of the road, 123 miles from Cordova.

Q What was the nature of the construction work going on
there?

A Rock work and tunnel work.

Q In May, 1910, what was the nature of the work going
on there?

A General construction work.

Q Rock and tunnel work?

A Yes.

Q In that tunnel work and rock work was explosives used?

A Yes sir, they had to be.

Q And who had supplied those explosives?

A How do you mean now?

Q I mean who supplied the explosives that were used there
at that time?

A They were the explosives — oh, the explosives were all
gotten from The Katalla Company as far as I know.

CROSS-EXAMINATION.

(2 I \y\ Mr. Graves ) You sity you were superintendent for
M. J. Heney?

A Yes.

(2 Were you in Alaska at that time?

A Yes, I was.

Q And ^I. J. Heney was the man who was contracting and
}>uilding the road?

A As far as I understood, yes.

Q As far as you understood?

A Yes.

Q. And H(»ney ]mrchas(Ml liis ])owder from The Katalla
Company?

THE KATALLA COMPANY 71

A Well, not exactly.

Q How's that?

A I don't understand it just that way. They were to have
furnished all the powder for the construction.

Q All that you know about it is that Heney furnished the
powder to those sectionmen, didn't he?

A That is through The Katalla Company.

Q IJut it was Heney's work to furnish those men with
powder, wasn't it?

A It was after the second agreement, I believe, witli The
Katalla Company.

Q After the second agreement Heney furnished the powder
to the stationmen?

A Yes.

Q And that was true in the spring of 1910?

A Yes, that is on station work.

MR. GRAVES : That is all.

RE-DIRECT EXAMINATION.

Q (By Mr. Lund) Who furnished the powder that was
used by these men at the time?

A Well, it was furnished through Heney from The Katalla
Company.

Q It was furnished through Heney from The Katalla Com-
pany?

A Yes.

Q Under what arrangement between them, so far as you
know?

A There was a selling price set by Tlie Katalla Company.

Q If the contract should a])pear to provide otherwise, then
you are mistaken as to that arrangement, are you not?

A I don't understand you.

Q I beg pardon.

A I didn't quite get that question.

Q What do you know about it yourself, personally?

A Nothing, exc(^])ting as we (*arried along with the work
and the supply of powder from time to time.

72 JOHN p. JOHNSON VS.

Q Do you know personally under what arrangement the
powder was furnished to those stationmen?

A They Avere to paj a certain price for the powder that they
were using.

Q Where did the powder come from?

THE COURT : I think he answered that several times.
A We received it from The Katalla Company.
Q I want to know what the arrangement was between Mr.
Heney and The Katalla Company as to that powder?

MR. GRAVES : I object to that on the ground that it ap-
pears there was a contract between the parties and that is the
best evidence.

THE COURT : It appears that there was a contract, and
the contract will be the best evidence.

Q (By Mr. Graves) Without reference to what the con-
tract was, The Katalla Company had certain material in
Alaska, didn't it?

A Yes.

Q Heney was the contractor?

A Yes.

(2 And this Avork was let to the stationmen along at differ-
ent places?

A Yes.

Q And Heney had a contract of some kind with The
Katalla Company and then he had a contract with each one of
those stationmen for the work?

A Yes.

■MR. LUND: I want to ask one more question:

Q Wliat, if any, knowledge did you have as to any defect in
the dynamite as it was furnished to men upon that particular
station?

A I didn't know whether — I didn't have any knowledge
that there were* any."

HERBERT (\VKSON testified as follows

Q (By Mr. Lund) You live where?
A In Roslyn, I»ritis!i Columbia.

THE KATALLA COMPANY 73

Q How long have you lived there?

A Fifteen years.

Q And what is your occupation?

A I am a miner.

Q And how long have you follow-.Ml the occupation of
miner?

A Fifteen years.

Q Where A\'ere you working in May, 1910?

A I was working in ditferent places. I started to work in
Camp ^^119" on the Copper River Railroad.

Q Your experience in mining has been in quartz and coal
mines?

A In quartz mines.

Q And what experience have you had in handling dyna-
mite?

A Considerable.

Q To what extent?

A Well, I used it ever since I started mining.

Q Used it more or less since you have been mining?

A Yes.

Q Do you know Mr. Johnson, the plaintift* in this action?

A Yes.

Q Tell the Court and Jury whether you and he went up to
Alaska together?

A We certainl}^ did.

Q You came from Roslyn to Seattle?

A Yes.

Q And you heard me otter here to ascertain from him how
he came to go to Alaska and what, if any, understanding you
had here in Seattle with any one in regard to employment up
there — can you tell us what that was?

A Well, we came to Seattle in answer to a letter that we
had from — with regard to an advertisement in the newspaper,
w^anting rock-men to work on the Copper River & Northwestern
Railway.

Q Who did you see in Seattle in reference to that?

A I saAv Mr. Heney's agent on the wharf.

Q And then what arrangement did you make, if any, with
him?

74 JOHN p. JOHNSON VS.

A We made an arraugement with him and secured our
tickets through him?

Q Through him?

A Yes.

Q What arrangement did you make through him?

A We made an arrangement with him to go to Cordova
and be shipped on from there.

Q Where to?

A To the construction work on the Copper Kiver Railway.

Q And for what purpose?

A For the purpose of working on the railroad.

Q And Avhen you came to Cordova what took place with
reference to your employment?

A Well, we came down to see the agents on the wharf in
Cordova and he gave us as pass and a meal ticket to get our
dinner at Camp "49''.

Q And where is Camp "49''?

A It is fortv-nine miles out of Cordova.

Q On the—

Q On the Copper River & Northwestern.

Q On the Copper River & Northwestern Railroad?

A Yes.

Q And from there you went on, where to?

A From there we walked across the river and waited until
the train got ready to go to Tiekill.

Q What, if anytliing, did you assist in doing when you
were there?

A We assisted them to load some ferries with powder and
some coal sacks were lying there and stuff like that.

Q When you speak of powder, what sort of powder do you
mean?

A Well, dynamite in cases.

Q Wliere was tliat dynamite being sent to?

A It was sitting up on a sand bank.

Q I in(»an wbcTe was it going to?

A It was su]>pos(Ml —

MR. C,1^\VFS: I shall object to that, as being a month or
six wef^ks before* the ex])losion.

(Question withdrawn. )

THE KATALLA COMPANY 75

Q (Mr. Lund) After that, where did you go to?

A Tiekill.

Q How far is that from Cordova?

A One hundred and one miles.

Q Is it on the line of the Copper & Northwestern?

A Yes.

Q. And when you came to Tiekill what arrangement was
made?

A Well, we stayed there in camp a couple of days and made
arrangements Avith Mr. Murchison to go out and work for
George Kaildy at Camp "119."

Q When you speak "we," who was we?

A There was ten of us together — a party made up in
Koslyn to go there.

Q In Koslyn?

A Yes.

Q Was the plaintiff one of them?

A Yes.

Q He was with you there at Tiekill?

A Yes.

Q Did he go with you at Camp "119"?

A Yes.

Q How long did you remain there?

A We remained there till the morning of the 23d of May.

Q And what work were you there put to?

A We were shoveling and drilling.

Q And then after that where did you go to?

A To Camp "123".

Q Who went with you?

A Mr. John 1*. Johnson and Mr. Fred Johnson.

Q And the three of you went there to Camp "123"?

A Yes.

Q What was the date of that?

A May 23d.

Q And Avhat did you find the condition to be over at Camp
"123"?

A Well, we considered tlie accommodatiims a little better.

Q I mean what work were they doing there?

76 JOHN p. JOHNSON VS.

A They were driving a tunnel at one end and squaring up
the tunnel at the other end.

Q Where did you and Mr. Johnson go to work?

A We Avent to work in the north end of the tunnel in
Mine 123.

Q Doing what kind of work?

A Drilling.

Q And how many days did you work there up to the time
of this explosion that is mentioned here?

A Two da} s and a half — a little over two days and a half.

Q Where were you at the time the explosion took place?

A I was working in the heading on the right-hand side —
on the left side going in.

Q In the tunnel?

A Yes.

Q Who Avas working there with you?

A A man named Bird — I don't know his other name. He
was a stranger to me.

Q HoAV far from the hole that was being loaded?

A I should judge it would be about tAvelve or fourteen
feet, not farther.

Q And were you using the hammer or turning the drill?

A I was turning the drill.

Q Sitting down?

A. Yes.

Q. And now tell us — tell the jury what you saw of that
explosion and how it took place and all about it?

A When we went to work in the tunnel Mr. Kiley said he
had a hole he had to blast before he could drill his lifter. He
was working in the heading with us and we had started to
drill our lifter on the left-hand side and we were working at
one, and Mr. Riley came in with his partner and the powder
and the tamping stick to load this hole.

Q. (Jo ah(\ad.

A And I saw him start to load the hole and was watch-
ing him, because we all had to go when he had it i)repared to
blast.

Q I don't hc^ar you?

A I s;iw him start to load tlic^ hole and was watching him

THE KATALI.A COMPANY 77

while he was loading it, because we all had to go out when he
was prepared to blast it.

Q Tell us how he loaded it?

A He used his tamping stick and his partner stood there
and took the powder and split them — split the sticks and
handed it to Mr. Kiley, and he took his tamping stick and
shoved them in the hole.

Q What was that tam])ing stick made of?

A Made of wood.

Q ^Vhat is the ordinary and proper method of loading
dynamite into a hole?

A I never used any other system than that.

Q And then what happened?

A Well, I can't altogether recollect \\'hat happened. I got
knocked out. The explosion took place and buried me and
buried two other fellows and I got in a little cavity in the wall.
After that I don't really know what did happen for some little
time.

Q You were laid up for hoAV long?

A I was laid up for very nt^ar a month.

Q Let me ask you now — before this accident or explosion
happened, what, if any, occasicm had you to use the ])owder?

A Well, I had occasion to use the powder in springing
holes.

Q And where was the powder ke])t up there?

A The powder was kept in a log building.

Q And tell us what you found to be the appearance of that
powder that was used there?

A Well, the powder — well it was ordinary powder, it aj)-
peared to be — it appeared to be wet.

Q Tell us what it looked like?

A It was the ordinary hand-s(»aled powd(^r.

Q By powder 3'ou mean dynamite?

A Yes, giant powder.

Q Is giant powder and dynamite the same thing?

A Yes.

Q Go ahead.

A It looked to ho bleached like, in the paper, to my mind.

Q Was there any stam])s or marks or dates on it?

78 JOHN p. JOHNSON VS.

A On the boxes, ves — very few on the powder,

Q What Avas the date on the powder?

A The date on the oases was Mav, 1907.

Q Mav?

A May, 1907.

Q And this was in May, 1910,

A Yes.

Q — that you were using it?

A Yes.

Q Xow tell us Avhat was the appearance of the sticks —
what did they look like?

MR. (tRAVES: I shall object to this because it is not
shown that this is the powder that was used on this particular
day — he is speaking of powder that he saw at some other time.

THE COURT: I think there should be some connection
shown between the powder used on the occasion in question
and the other; at least sufficient evidence to show bv an infer-
ence that it was the same class of powder.

MR. TA'NI): I intend to connect it up, if not by this wit-
ness by other witnesses here present, to show that it was the
same powder.

THE CX)URT : I don't know where this powder was that
this witness testified about — where he saw it or the circum-
stances about it.

Q (^Ir. Lund) Where was the powder when you saw
it, Mr. Carson?

A I saw the powder in tlie powder-house.

(2 Was there more than one kind of dynamite^ —

MR. (GRAVES : ( Interrupting ) At camp "123" or "119"?

A ''VlWr

<l Was tliere mon^ tlian one kind of dynamite in the
powder-house?

\ As to that I can't say.

(^ How many kinds did you see there?

A I only saw Ww one kind — the kind w(» were using.

Q Had tlicre been any otfier kind in there, would you have
seen it?

(Obj(Ht(»d to by counsel for defendant. ObjcMtion over-
ruled. Exception noted for defendant.)

THE KATALLA COMPANY 79

A Yes, I believe I should.

Q How long was that before the exi)losion took place?

A Well, it was not very long.

Q How long?

A Well, I was only working there two days and a half
before the explosion took i)lace.

Q I will ask you now to state what was the appearance
of the dynamite which you saw in the powder magazine?

A Well, some of this powder appeared to be bleached, and
in places where I saw the sticks broken it looked discolored.

Q And what, as to dryness or moisture?

A Well, it appeared to be moist — very moist, some of it
on the outside.

Q Outside of the wrapper?

A Yes.

Q What was tlie nature of that moisture, as to whether it
was watery moisture or oily moisture?

A It appeared to be an oily substance.

CROSS-EXAMINATION.

Q (Mr. (Iraves) What river was this along which you
were doing this work; what was the name of the river along
which the work was carried on?

A The Copper River.

Q The Co])per River was not opened yet to navigation for
boats that spring while you were up there, was it, up to the
time of the accident?

A No sir.

Q Where was the Katalla Company's warehouse with ref-
erence to camp 123?

A The warehouse was at 122.

Q Supplies had to b(^ carried in by sled, didn't they, u]) to
those camps?

A Yes, sir. They were freighted in over the ice on sleds.

Q Who did the freighting?

A Well, 1 always understood it was the Katalla Company
that was doing the freighting.

80 JOHN P. JOHNSON VS.

Q I asked you whether you know who did it — did Heney's
uien and the stationmen go down and get their supplies and
bring them up there?

A No, all the supplies were delivered to 122.

(J Tliis powder which you saw — in whose powder shed
was that?

A The powder Avas in the — at Avhat time?

Q Well, Sam Rollin — did he have a shed where he had his
supplies?

A Yes, he had a shed.

Q This powder which you spoke of was in Sam Rollings
shed?

A Yes.

i} And how long Sam Rollin had it there, you don't know?

A Not positively, no.

Q You don't know Avhen Sam Rollin carried it in there?

A Well, I am not positive.

Q You don't know?

A No sir.

Q You had only been there two days and a half?

A I had only been there two days and a half.

Q Sam Rollin had it in there before you came in?

A Yes.

il Wliere it got the water in it, whether it laid out in the
sun and got bleached, you don't know?

A No.

(^ Yon don't know whether it was bleached after it came
into the possession of Sam Rollin or not, do you?

A W(dl, it could not very well ^^et bleaclunl there.

(} Well, you d(m't know anything about it, do you?

A It was —

(i Yon don't know anything about it?

A No, only what I saw there.

(2 And that is all you know, what you saw there — what
did you s(»e the tignn^s "May, 11)07," on — what was that on?

A On the ends of the powder cases.

(2 On the ends of th(» i)ow(ler cases — the powder box?

A Yes.

il How many boxes did you see that on?

THE KATALLA COMPANY 81

A Well, several.

Q How many?

A I could not positively say.

Q How many powder boxes were there in there?

A There must have been a couple of hundred.

Q And you may have seen it on several — now you say you
used some of this powder to spring holes with, did you?

A Yes.

Q Did you use the powder marked "May 1, 1907"?

A There was no discrimination used.

Q Did you take it out one of those cases marked that way?

A Yes.

Q Were those cases sealed when 3^ou took it out?

A They were cased up — they were boxed up, yes.

Q Were the cases or boxes sealed — did you open the boxes
yourself?

A Yes. g

Q And yoJ took some out that was marked "1907" ?

A Yes.

Q And that was the powder which you used?

A Yes.

Q And that was how you came to see it was marked
"1907"?

A That was common curiosity lead me to look at it.

Q You noticed it was on that piece that y(m used — it was
marked "1907"?

A Yes.

Q You have had experience in the use of powder?

A Yes.

Q And you used this to spring those holes?

A Yes.

Q Wliat do you mean by springing a hole?

A Well, tliose holes Avere drilled very small, and to get
action with the powder it was necessary to spring them, to
make a chamber at the bottom of the hole to gi^i the proper
force to break the ground.

Q How did you g(4 the powder down into the hole?

A Tamping stick.

Q You used a tamping stick?

82 JOHN p. JOHNSON VS.

A Yes.

Q This powder marked 1907, you took and pushed it down

with a wooden tamping stick into the holes?

A Yes.

Q How big were those holes — how deep?

A From five to seven feet.

Q How was this powder exploded after it was down in the
holes?

A By a fuse and cap.

Q Who lighted the fuse?

A The man springing the holes.

Q Who sprung the holes?

A I did on different occasions.

Q On different occasions?

A Yes.

Q Prior to this accident?

A Well, I could not say.

Q Just answer my question — prior to this accident — be-
fore the accident?

A I am positive I done it once or twice before the accident.

Q At Sam Boilings camp?

A Yes sir.

Q You had been there two days and a half?

A Yes.

(I Wlien were there any shots fired in the face of this
tunnel before the day of the accident?

A It had been blasted the night before.

(2 Tlie night before?

A Yes.

(^ Tliis hole that missed fire, that didn't break out — when
was that fircnl — the niglit before or tlie niglit before tliat?

A I could not say when it was fired myself.

(2 Vou don't know as to that?

A It hadn't been fircMl during that day.

(i There ha<l been some shots fired the night before the
accident though?

A Yes.

(2 An<l w hen do yon spring the holes — after they are fully
drilled?

THE KATALLA COMPANY 83

A Yes.

Q In other words, after 3^ou have drilled the holes to the

depth you want, you put dynamite in the bottom, a small
amount, and spring it, force it, so that that hole will lK)ld
enough charge to blow off the face of the cliff?

A Yes.

Q That is it?

A Yes.

Q What day did you commence work?

A I commenced work on the 24th of May.

Q What were you doing that da}^?

A Drilling.

Q Wlio drilled with you?

A Sam Roll in drilled part of the time with me.

Q How many holes did you drill that day?

A I drilled two holes, I think.

Q Did you spring the holes that day?

A Well, the usual custom was to spring the holes —

Q I didn't ask you for the usual custom — do you recollect
whether you sprung any holes that day?

A Well, I can't remember exactly.

Q Did you spring any holes the second day?

A Yes.

Q Did you spring any holes the third day?

A No sir.

Q How many holes did you spring the second day?

A Sprung three.

Q You sprung three?

A Yes.

Q Where did you get the powder.

A I got the powder along the grade.

Q Did Johnson spring any holes?

A Johnson was drilling down-holes.

Q When you were springing the holes did the men go out
of the tunnel?

A Yes.

Q How many trips did you make to the powder house on
the second day?

A I only went there twice.

84 JOHN p. JOHNSON VS.

Q WliY did YOU go there twice?

A To get powder.

Q To get powder twice?

A Yes.

Q Who sent you there?

A Mr. Rolliu.

Q Did he go there with you?

A No sir.

Q Did the powder men assist you in springing those holes?

A There was no powder men there.

Q I thought Kiley was engaged in that business — I under-
stood Mr. Johnson to say that Riley was the man who handled
the powder.

A That blasting is all done on the night shift — that is the
final blasting is done on the night shift.

Q Did you do any blasting at night?

A No sir.

Q Then you went up there twice — how much dynamite did
you get either time?

A AVell, the first time we only required one or two sticks.

Q Was there anybody in charge of the powder house?

A No sir.

Q You just went in there and went to the boxes and took
out two sticks, now is tlmt correct?

A Yes.

(2 Tlien what time of day was that?

A W(dl, tliat would be about ten o'clock in the morning.

Q Wliat time did you come ])ack there again?

A About two o'clock.

Q How nmny sticks did you f:^et that time?

A As near as I can recollect, about five or six.

Q Did you get them out of the same case?

A I couldn't say for certain.

i} How many sticks of dynamite are tliere in a case?

A As near as I can judge, abont (me luindred and eighty.

Q One Inindred and eighty?

A Yes.

Q Did you o])en a case tlie first time you got the two sticks
out?

THE KATALLA COMPANY 85

A Well, I opened lots of eases.

Q Were you in the powder house at any time except that
one day?

A Yes, I have been in the powder house lots of times.

Q Were you there the first day you went to work — in the
poAvder house — did you go into the powder house?

A No sir, I did not.

Q Did you go into the powder house the third day — the
day of the accident?

A Yes, I think so.

Q You were in the powder house twice the second day?

A Yes, as nearly as I can recollect.

Q What did 3^ou go into the powder house the third day
for?

A For powder to spring the hole.

Q You sprung the hole in the forenoon?

A Yes, after we got a drill.

Q How many sticks of djmamite did you get to spring that
hole?

A Well, we only used one stick to spring the hole — the
first springing.

Q So you only got one stick?

A That is all we used that time.

Q So you used this powder to spring holes three times?

A As near as I can recollect.

Q And you loaded it into the bottom of the hole and then
took the fuse and cap to set it off?

A Yes.

Q Now coming down to tlie time of the accident — what
were you doing when Riley came in?

A I was sitting down turning the drill.

Q What was your partner doing?

A He was hammering.

Q How long was Riley in there before the explosion oc-
curred?

A Not very long.

Q About how long?

A Not more than half an hour.

Q What were you doing during the time Riley was in there?

86 JOHN p. JOHNSON VS.

A Sitting down turning the drill.

Q What was Rilej doing during the time he was in there?

A He was Avorking charging his hole.

Q How much powder do they ordinarily put in a hole of
that kind to blow out the rock — how much powder or whatever
explosive 3'Ou were using?

A All thev can get in there.

Q About how much is necessary to blow that out?

A Well, niav be tAventv-five or thirtv sticks.

Q Did you see Avhat Riley's partner had Avith him Avhen he
came in?

A No sir, I Avas too far aAvay to see Avhat he had.

Q What did Riley have?

A Riley had a box and a tamping stick.

Q The other man didn't haA^e the pOAvder Avith him?

A No sir, not that I seen.

Q Was the box full that Riley had?

A I could not see him from the position I AA^as in — I could
not say what AAas in it?

Q About hoAv many sticks did you say was held in one of
those boxes?

A From one hundred sixty to one hundred and eighty
sticks.

Q And for each one of those holes it Avould take twenty-
fiA'e or thirty sticks?

A Yes sir, usually after they Avere sprung.

Q In charging these holes — these sticks of dynamite come
wrai)ped in a ])ai)er, don't they?

A Yes.

Q And about how much are they in diameter — hoAv large?

A TIiree-(]uarters of an inch.

il And wliat are they in lengtli?

A About eight inches.

Q Now lie wouhl take and ])ick u]) one of those sticks,
would he, and ])ush it in with a tamping stick or loading stick?

A His ])artii(*r gave him the ])owd(»r and split the poAvder
and gave it to him and lie shoA^ed it in with a tamping stick.

(} What do you mean by syditting it?

A He Avonld take his knife and cut the ])owder oi)en.

THE KATALLA COMPANY 87

Q That is Riley's partner would take a knife and take up a
stick of dynamite and split it open with his knife and then
hand it to Riley.

A Yes sir.

Q What shape was that powder in after the paper is split
— what condition is it in?

A Almost the same shape.

Q Is it loose powder or just held together like a candle?

A It is not loose powder in there. It is mixed with some-
thing, I don't know what.

Q Mixed with something so that it holds its shape and
form?

A Yes.

Q It is not loose?

A No.

Q Then he takes that and with that loading stick he pushes
it in, doesn't he?

A Yes.

Q Now this hole was in there in this tunnel since the last —
when did they explode those holes — the night before, wasn't it?

A Yes.

Q This hole didn't break cmt, did it?

A No sir.

Q When a hole does not lueak out, ^fr. Carson, and the
powder goes off in there, the hole will sometimes get clogged
with pieces of broken rock, will it not?

A Yes, sometimes.

Q And 3^ou can't take and force powder in there with the
wooden stick then, can you?

A Well you can shove the wooden stick in and clear the
hole.

Q You can't always clear it with the wooden stick, can you?

A Ver^^ nearly, yes, except —

Q Well, you can't always do it, can you?

A Well, I never had very much trouble that way.

Q How?

A I never had very much trouble that wa} .

Q Is it not a fact that the only way you could open the
holes then is witli a steel drill or steel rod of some kind?

SS JOHN P. JOHNSON VS.

A Not with me.

Q You never heard of that in your life?

A I think I have heard of it all right.

Q Well, YOU have seen it done too, haven't you?

A No sir, I never did.

Q You never knew of it being done?

A By hearsay, but never by actual experience.

Q Your business is that of a driller?

A Yes.

Q Y"ou are not an expert powder man?

A ^[y duties compel me to use powder.

Q Your duties compel you to use powder?

A Yes.

Q Were there steel drills there in that tunnel?

A Yes, I was using one.

Q Tliere were other drilling men who worked over on the
other side where Riley worked who were not working that day.
on that job?

A Yes, I was working on the other side from Riley myself.

Q There were other drills and other drillers who were not
at work that day?

A I think they were all working that day, all that was
there.

Q Now then, you don't know how this explosion occurred,
do vou?

A No sir.

Q You can't tell this jury just Avhat occurred at the time

of the explosion, can you?

A W(dl only wliat T saw, that is all I can tell.

Q What \ver(» you doing at the time the explosion occurred?

A T was sitting down turning the drill.

(2 How's that?

A Sitting down turning the drill.

Q Y(m were attending to your work?

A W(01, yes.

Q HjhI yon notice<l what Riley had been doing for several
minutes before that?

A Yes, 1 coukl see Mr. Riley all the time.

THE KATALLA COMPANY 89

Q You could see Riley all the time while you were work-
ing at the drill?
A Yes.

Q And all at once the explosion occurred?
A Yes. '1

Q Did you see the explosion occur or was it over so quickly
that you didn't see anything before your eyes — did you?
A Yes sir, I actually think I saw the explosion.
Q You actually think you saw the explosion?
A Yes sir.

Q Riley was standing in front of it, was he?

A Yes.

Q Riley was not killed?

A No sir.

Q He was not badly hurt either?

A He was pretty badly hurt.

Q That is, he was blown up but he had no bones broken?
A I don't know what he had broken. I know he had some
ribs broken.

Q Did you see powder lying around there in the muck
afterward?

A No sir.

Q You didn't see that?

A No sir.

Q Y^ou say you were unconscious for a time afterward?

A Yes.

Q You know where the explosion occurred, whether it oc-
curred in the face of the cut or whether it occurred in the
powder box?

A No, I could not say for certain where the explosion
occurred, but it must have been in the face of the cut because
the powder box would not bury so with muck if the powder
exploded. It would not likely have buried so in the muck.
Q Now, the muck that buried you was what was blown out
of the face?

A It was what was broke from that hole.

Q It broke out of that hole?

A Yes.

90 JOHN P. JOHNSON VS.

Q Where was Eiley and his partner standing in reference
to that hole?

A Right over the hole.

Q Eight at the opening of the hole?

A Yes.

Q And this hole bleAv up, struck them first and then buried
you?

A No sir, the Aveight of the muck came onto us. That
hole broke sideways and it all came over onto us fellows pretty
near.

Q What time did the ice go out so that boats could come
up the Copper Eiver that summer?

A It was in June sometime, I believe.

Q Wasn't it about the forepart of July?

A No, it was before July.

Q At any rate, it was after the accident before the ice went
out?

A Yes.

ME. GEAVES : That is all.

ME. LT^ND : I wish to ask the witness some more questions
but I will excuse him temporarily.

Q (By Juror) You spoke of the powder being bleached.
Is that an indication of age, or what causes it to bleach — would
it be moisture or age?

A I could not ])ositively tell. It might be moisture.

Q It is an indication of defective powder though, is it?

A Well, I am not an expert.

Q (^Ir. Graves) Just along that line — what you mean
by bleached is that the ])aper which Eiley's partner was cut-
ting off, that that ])aper which was wrai)ped around the powder
itself was a little bit bleached?

A Yes.

(Witness ex(*used.)

E. S. M('(M)EI), called as n witness on behalf of plaintiff,
iK'ing first <lnly sworn, testifies as follows:

Q (Mr. Lund I You arc a practicing attorney here and
have been in tlic prjicfice here a number of years?

THE KATALLA COMPANY 91

A Yes sir.

Q You knew Mr. Heney in his life time?

A Yes.

Q And when did he die?

A October 10, 1910, I think that is the date.

Q Mr. Siegley is now executor of his last will and testa-
ment?

A Yes.

Q And you are one of the attorneys of record for the
executor of his estate?

A Yes.

Q And you are familiar, more or less, with Mr. Heney's
affairs ?

A Yes, to some extent.

Q You represented him, as attorney, more or less, during
his lifetime?

A I never represented Mr. Heney until about three months
before his death.

Q I will ask you to look at identification A (showing) and
tell us if you have ever seen that before?

A Yes sir.

Q Where have you seen that?

A It was brought to my office by Mr. Siegley, one of the
executors of the M. J. Heney estate.

Q About what time was that?

A Oh, it must have been within a month or two after his
death.

Q Where has it been since?

A W^ell, I think it was brought to my office in the first place
by ^Tr. Siegle}- along the early part of 1911 and then it was
returned to Mr. Sieglev, and I think it came back into mv
hands some two months ago.

Q And in what light has that paper been considered by

you, as one of the attorneys for the executor of Heney's estate.

MR. GRAVES : T object to that as irrelevant, immaterial

and incompetent as to what light it was considered in by the

witness, as not the proper method of proving a contract.

THE COURT: The point has been made, Mr. Lund,— I
don't know that the counsel makes the point here — that the

92 JOHN p. JOHNSON VS.

original contract should be produced, but he does make the
point that there is no proof that this is a copy ; that no person
who has seen the original has made any comparison between
that and this. I do not feel clear that the light in which Mr.
McCord, as attorney of the estate, regarded it would be evi-
dence.

Q (Mr. Lund) I Avill ask you,. Mr. McCord, if you have
ever seen the original of that?

A No sir, I never saw the original. This was handed to
me as a copy of the contract, but I never saw the original.
Q Where is the original to your knowledge?
A The original — I don't know that I could say definitely,
but I think it is in the hands of The Katalla Company. That
is m}^ impression, hoAvever, only. I don't know.

Q In your dealings and in the dealings of the executor of
Heuev's estate with The Katalla Companv in reference to the
matters specified in that contract, that copy which you hold in
your hand — what has that been taken to be between both you
and The Katalla Company?

^IR. (tRAVES: I object to that as irrelevant, immaterial
and incompetent. It is getting at the same thing in a round-
about way.

THE COURT : If it can be shuwn that The Katalla Com-
pany has recognized this as a copy of the contract I think it
is material, but the question is too broad and I will sustain
the objection.

Q (Mr. Lund ) You have heard the matter discussed, Mr.
McCord — n<nv tell what you know — what can you say with ref-
erence to it. You know more about the matter of getting at
this thing than I do — tell us what you can, Mr. ^IcCord?

-M U. (IRA YES: Do you want to associate him with you in
the case?

MR. LT'NI): (Jo ahead.

M i:. (JRAVES : I think I have the right to have a question
asked of tlie witness so that I can objtM-t to it.

(} i Mr. Lund ) Can you state, Mr. Mc(\)rd, that the ])a])er
which yon have in y<mr hands — tlie i)rovisions in that — the pro-
visions in that jjaper — the agreements made in that pa]>er have
been recognized by the Katalla Company, or the Katalla Com-

THE KATALLA COMPANY 93

pany's attorneys as the contract between the Katalla Company
and Heney in your dealings with The Katalla Company?

MR. GRAVES : I object to that upon the ground the ques-
tion is incompetent and the evidence called for is incompetent.

THE COURT: The question calls for the opinion of Mr.
McCord on that subject as to what has been recognized. What
would amount to a recognition is a matter on which men would
differ very much. If there is any evidence showing that any
agent of the company has seen this copy of the contract and
said it is all right, then, i)erhaps it might be shown. I will
sustain the objection.

Q (Mr. Lund) Has any of the attorneys for The Katalla
Company or any of the officers of The Katalla Company seen
that contract or that copy which you have and recognized it
and acknowledged it as being the contract in question?

MR. GRAVES: I object to that. The attorneys or any
officers are not able to bind this company unless it is shown
that it is some one who is capable of speaking for the comi)any.

THE COURT : I will sustain the objection to so much of
the question as relates to the attorneys, but as to so much
of it as relates to the officers I will overrule the objection.

(Exception noted for defendant.)

A I will have to ask somebody a question. I do not know
who the officers of The Katalla Compan}^ are. Mr. Young, or
Mr. Youngs — if Mr. Youngs is an officer of The Katalla Com-
pany— I will have to know, jour Honor, before I can answer
the question.

MR*. LUND: Do you know whether that is a fact?

:MR. GRAVES: :My understanding is that he is not — that
there are no officers of The Katalla Company in Seattle. I can
not state that definitely, but that is my belief.

A I can state — I don't want to volunteer anything — but
I (»an state, if Mr. Youngs was, I could state that I talked
to him.

Q (]\lr. Lund) State what your dealings have been with
Mr. Youngs?

A I don't know wln^ther he is an officer or not.

MR. GRAVES: I object unless tlie witness knows.

A I am not able to state whether Youngs is or not.

94 JOHN p. JOHNSON VS.

THE COURT : The Court cannot take any judicial notice
of Mr. Young's authority.

Q (Mr. Lund) I will ask you, Mr. McCord, if joii will
tell us in what respect you have dealt with Mr. Youngs?

A Well I have discussed with Mr. Youngs the relative
riglits of the ^I. J. Heney estate and the Katalla Company
under this contract, as to certain phases of the contract. The
discussion that I had was with Mr. Bogle and Mr. Y^oungs and
Mr. Hawkins. I don't know whether those men are officers of
the company- or any of them, I can't say, but they discussed
the matter with me.

Q ^Ir. Bogle is one of the attorneys of record in this case
— you mean Mr. Bogle of Bogle, Merritt & Bogle?

A Yes, Mr. AY. H. Bogle, yes.

(} In what capacity was Mr. Youngs, apparentl}^, acting at
the time?

A Well, Ave had a dispute over a certain clause in this con-
tract as to certain charges for freight, or failure to carry freight
up the river, and we used this copy of this contract in discussing
it, and that is all I know, but I don't knoAv whether Mr. Y'oungs
— I don't know what his capacity was.

Q And at what time was that?

A Tliat was about — that was before Christmas, shortly be-
fore Christmas last.

il And what position did Mr. Youngs take in reference to
that being a true copy of the original contract?

MR. (IRAVES : T object to that on the ground that he has
not shown any authority in Mr. Youngs.

THE COURT: T will overrule the objection, without pass-
ing upon tlie ultimate point involved in this question.

(Exce])tion noted for defendant.)

A Sliall T answer the question?

.AIR. (JRAAH^^S: My objection is that it calls for the ex-
j^ression of an o])inion by some (me not sliown to be in any
way connected wiMi the (h'fendant.

THE COrUT: Whether this is binding on the company
without fnrlher evi<hMice, I (h) not now rule, but T think the
testimony is comiK'tent so far as it goes.
(Exce|>tion noted for defendant.)

THE KATALLA COMPANY 95

A Well, we — Mr. Shields, who was in the employ of the
Heney estate — of M. J. Heney during his lifetime^ in the con-
struction of the road — and myself went over to Mr. Youngs'
office about three weeks before C'hristmas, as I remember the
date — I am not positive — to discuss certain features of this
contract and I had this copy with me, and we had occasion to
refer to the clauses of the contract and I passed it over and
Mr. Youngs examined that contract and Mr. Bogle, and I read
parts of it and from that we based our discussion as to the
relative rights of the parties as to that feature that we were
discussing.

Q And in Avhat capacity — apparent capacity — was Bogle
acting at the time?

MR. GRAVES : I object to that as being irrelevant, im-
material and incompetent.

(Objection overruled. Exception noted for defendant.)

A He was attorney for the Katalla rompany. May be
there is some other party to that contract. I think there is.
He was representing all except the ^I. J. Heney estate, as I
understand it — I think it is a tri-party contract — I think there
is some railroad companies that were interested in it.

MR. LUND : If there is I don't see it.

A I was not sure whether they signed the contract or were
parties to it as being interested in it. I can't turn to it with-
out making an examination, but it refers to two railroad com-
panies— the engineer of the Copper River & Northwestern Rail-
way Company and some other railway company — I think there
are two of them in there, if I am not mistaken — I haven't ex-
amined it recently.

Q Now, Mr. McCord, I will ask you if you recollect that
I spoke to you about that contract some time ago?

A Yes, you did.

Q And that you told me at the time that you or Siegley
had the contract for the construction of the road?

A That was the contract that I thought we had.

Q You thought it was the original, didn't you, at the time
you spoke to me?

A Yes, I supposed that was the original — I didn't have
it in mind when you were talking to me, but I supposed it

96 JOHN p. JOHNSON VS.

was the original, and I felt so sure it was the original that
today, since I Avas here this morning, I went through all the
papers in connection with the Heney estate in my office think-
ing that perhaps the original was there, but it was not.

Q It was not there?

A No sir — at least I could not find it.

CROSS-EXAMINATION.

Q (By Mr. Graves) Mr. McCord, there are, as parties
to this contract or parties to the subject matter. The Katalla
Company, a corporation, and M. J. Heney and also The Copper
Kiver Railway Company; you do not know whom Mr. Youngs
was apparently representing, whether The Katalla Company
or the Copper River Railway Company, do you — he did not
declare himself?

A It was not declared. I assumed that he was represent-
ing the Katalla Company.

(2 You just assumed that?

A Yes.

(i (Mr. Lund) Had you any reason, during the confer-
ence, for that assumption, Mr. McCord?

A AVe took up the various matters connected with the con-
struction of that railroad up there and went into them and
discussed them and agreed on a certain line of procedure. There
was a dispute as to the amount we owed. They claimed we
owed them something and we claimed they owed us, jind it is
an unsettled account at this time. We took that pro])osition
of settlement under advisement for a week or two, and that is
the way the matter stands. ,

Q (Mr. (iraves) Mr. McCord, do you know anything
about a modification of this contract ju-ior to 1 !)!()?

A Personally?

Q Yes.

A No sir.

Q Vou hav<' heard there was sucli a modification?

A I hjive h(sird there was some slight modification.

Q You have no knowledge as to wliether this was the con-

THE KATALLA COMPANY 97

tract actually in force between The Katalla Company and M.
J. Heney in the spring of 1910— you can't state that from your
own knowledge?

A I could not state it from my own knowledge, but so far
as the contract is concerned, Mr. Graves, I understand it is
the contract that exists, with the exception of one clause in
regard to some powder — now that was only hearsay.

il (Mr. Lund) One clause in reference to what?

A I say there was one clause that I understood was
changed — I have heard rumors of it — I don't know definitely —
in regard to the powder.

Q In regard to what?

A In regard to some powder.

Q What was the nature of that clause?

MR. (IRAVES: I object to that. I simply went into it
for the purpose of showing whether or not this was the con-
tract between the parties.

THE ( ;()UKT : The Avitness says this is entirely hearsay,
and it is incompetent.
(Witness excused.)

HEKP>EIIT CARSON, recalled on behalf of plaintiff, testi-
fies as follows :

Mil. GRAVES : Objected to as immaterial and as being a
hypothetical (juestion upon Avhich the witness has not been
shown to be competent to testify.

THE COURT: I will overrule the objection— tliat is,
whether it appeared to be just oj)ened up or had been going some
time, judging from general appearances, I think it is proper.

(Exception noted for defendant.)

A It appeared to me to have been going from about six
weeks to two months.

() And you say that the men went out of the tunnel when
you sprung the holes?

A Yes.

Q You mean that they went out of the tunnel before the
explosion occurred ?

98 JOHN p. JOHNSON VS.

A Yes.

Q Or do YOU mean that they went out of the tunnel when
you were loading the powder into the hole?

A Well, the general way Avas to load the holes and then
we would all go out of the tunnel before the explosion.

il Now you say that you don't know how the explosion
occurred ?

A No sir.

Q You know what you saw there at the present time?

MR. GRAVElS : I object to that as argumentative.

THE COURT: Anything that he saw that he has not
already testified may be shown, but he has gone over that
ground.

MR. LUND : That is all.

(Witness excused.)

I. F. LAUCKS, called as a witness on behalf of plaintiff,
being first duly sworn, testifies as follows :

Q (Mr. Lund) Htate your full name.

A I. F. Laucks.

i} You reside in Seattle?

A I do.

Q How long have you lived here?

A Six years, I guess.

Q And what is your occupation or business?

A Mining engineer and chemist.

(I In business here?

A V(^s.

(^ A graduate of what institution?

A Key Scliool of xV])])lied Science.

(} Where is that?

A (Mcveland, Oliio.

(2 When was that?

A 1!M)4.

(^ Since thai lini<' w iiat (experience liave you ha<l in Ihe
handling of dynamite?

A Well, 1 have worked underground — when I first came

THE KATALLA COMPANY 99

out of college I worked about a year underground drilling,
mucking and one thing and another until 1 got practical ex-
perience, and then had charge of property. I worked under-
ground from mucker to engineer and I had general experience
in mining.

il When you refer to properties, you mean mining prop-
erties?

A Yes.

Q You have had charge of mining properties as engineer
in charge?

A Yes.

Q And you are also a chemist?

A I am.

Q Tell us what does dynamite consist of?

A I)3'namite — the ordinary term dynamite means nitro-
glycerine absorbed by some absorbant nmterial, such as in-
fusorial earth or sawdust, wood pulp and so on. That is the
ordinary — that is the simplest form of dynamite, though a
great many powders on the market have other substances in
connection with them, explosive in themselves or combustible in
themselves.

Q What percentage of nitroglycerine and what percentage
of filler does dynamite ordinarily contain?

A Well, there are different grades, running all the way
from 75% down to say 30%.

Q 30% of what?

A Nitro-glycerine and the different other inert material
or other substances added, which may be explosive.

Q What do you understand by the term nitroglycerine?

A Nitro-glycerine is a cliemical compound — 1 don't sup-
pose you want me to go into the chemistry of it very far?

Q Go right along.

A — but it is a combination of glycerine and nitric acid
to form wliat is called in chemistry a nitrocompound of gly-
cerine.

Q And that is the explosive part of dynamite, is it?

A Yes, that is its main explosive. In some of the patent
pre])arations on the market there arc^ also explosive com])ounds
in them, but nitroglycerine is generally the main explosive.

100 JOHN P. JOHNSON VS.

Q What is the purpose of mixing the nitroglycerine with
the absorbent?

. A The purpose is to render it safe to handle. That is,
})ure nitro-gh cerine is a very hard substance to handle with
safety and to ship any distance, but when it is absorbed by
some inert material and absorbed by some powder it becomes
much more safe to handle and to be shipped about the country
and so on.

Q What can you say as to whether nitro-gly cerine mixed
in that way with some other substance in a solid form is less
susceptible to shock causing explosion than in its pure state?

A It is much less susceptible, 3'es.

Q How does time affect this mixture, Mr. Laucks?

A Well, time affects it generally because the conditions
that affect nitroglycerine, the longer a time it has been stored
the more time those conditions have to act on the nitroglycerine.
To make my point clear, you take for instance the case of
moisture; in a moist climate dvnamite has a tendencv to take
up moisture and to displace nitro-gly cerine. Now the longer
that goes on — tlie longer it has been stored in a moist climate,
of course the more that ett'ect is pronounced.

Q And what is the result of that?

A Well, the result of it is that the dvnamite that has
bcHHi stored for some time in a moist atmos]>here, the nitro-
gh'cerin(» comes to the surface^, either underneath the wrap])er
or gets througli tlie wra])per and coHects in drops, or sweats,
as the miners call it, and in that condition it is very dangerous,
becaus(^ you liave tlien free drops of nitroglycerine there, and
it is a well known fact that it is a great deal more dangerous
ill that condition and that a great many accidents hai)pen due
to tliawing and one thing and another.

<2 \N'liat can you say as to whether dynamite* two and more
years of age is reasonably safe to liandh^?

y\K. CtKAVES: For tlie ])urpose of ])reserving the record
1 reserve an exception on the ground that it is calling for the
opinion of the witness in answer to a hy])oth(*tical (picsstion
not based n])on ;iny proven fact in this cnse or ii]>on ;niy evi-
denc(\

(Objection ovei-niled. Exception noted for defendant.)

THE KATALLA COMPANY 101

A Well, that depeuds a great deal upon how it has been
stored and the precautions that have been taken in storing-
it, but in most cases I should say that I would hesitate to use
dynamite that was two years old unless I knew exactly how
it had been stored and all its past history. I think, as a matter
of precaution, any conservative man would do that.

Q (By Mr. Lund) State whether or not an inspection of
the dynamite by a person understanding it will — persons un-
derstanding such things — will give information as to its con-
dition?

A It will, yes.

Q State whether or not it would be reasonably safe to give
out for use dynamite two years old or more, without an in-
spection.

MR. (tRAVES : I object to that on the same grounds last
stated.

(Objection overruled. Excei)tion noted for defendant.)

A I don't think it would be reasonably safe. I would not
do it myself, and I don't believe it would be safe.

Q (Mr. Lund) If it appears that the wrapper of the
dynamite is moist, with an oily moisture; what does that in-
dicate, Mr. Laucks?

A Well, I suppose by oily moisture there you mean an
oily substance or an oily liquid?

Q Yes.

A It most certainly indicates nitroglycerine. At least,
from your question it would indicate nitroglycerine, because
that is the only thing in dynamite that is of an oily nature.

Q Now, I will ask you this question : Assume as a fact
that some men are working in a tunnel on the railroad con-
struction; and a box of dynamite is brought into the tunnel;
with the sticks to be used in loading the hole, and two men
are loading it, one man is cutting open the wrappers and the
other is shoving the powder down into the hole with the load-
ing stick, consisting of wood, in the ordinary manner of loading
dynamite, and while in the act of doing so an explosion is
caused by the dynamite in the hole; the dynamite that is used
in loading it being more than two years old ; that the wrappers

102 JOHN P. JOHNSON VS.

are moist, with an oilv moisture, discolored — what would vou
say Avas the cause of that explosion?

MR. GRAVES: We object to that question for the reason
that it is propounding a question which calls for an answer
of the witness that it is the province of the jury to give. It
includes the whole contention of the plaintiff and is not a
hypothetical (juestion based upon facts shown in this case,
tending to prove some one point in the case. Secondly, upon
the ground that the two main facts upon which the witness is
asked to base his answer, namely that this powder Avas two
years old, that it was wrapped in a paper that had a wet oily
appearance, are facts that are not shown to the jury and have
not been jjroven.

THE COURT : The jury will have to determine what the
facts were from the evidence. Tlie jury can say how much of
the evidence in the case they accept as satisfactory and as cor-
rect. And what inferences they draw from them with reason-
able limits. It is also a question for the jury as to whether
that question clearly states the facts. If it does not the jury
will bear that fact in mind.

(Exception noted for defendant.)

MR. LUND: Do you remend)er the question?

A If the loading of the hole was properly done — your
question was if the hole Avas loaded in the usual manner, I
believe?

(2 I>y tlie use of a loading stick, one man cutting up the
powder and the other shoving it in in the usual and careful
manner of loading powder, with the facts that I assumed?

A If the loading was properly done, I should say that the
])robability was all in favor of — in fact there is nothing else —
there is no otiier answer to tliat <]uestion except that the dyna-
mite was at fault.

O And in what way would it be at fault?

A Well, it might be at fault in a number of different ways.

Q Assiiiiiing tliat the wrai)p(Ts were as I stated to you, and
assuming that the condition of the ])owder was as I stated to
you now?

A From y(nir des(ii])tiou of the powder and the ai>]>earance
of the wrajjper I should say that it had lHM»n a case of the dyna-

THE KATALLA COMPANY 103

mite being subject to moisture and the nitro-glycerine exuding
on the surface — sweating.

Q Tell the jury what is the ordinary, proper and careful
manner of loading dynamite into a hole in a mine or tunnel?

A The proper manner is to slip (slit?) the cartridges, shove
them in the hole with the wooden stick, using no metal what-
ever, and to press them carefully and tamp them — not by hard
blows but by pressure alone — to have the sufficient amount of
powder in the hole — then to prepare the last cartridges, or the
last cartridge, by making a hole in it and inserting your fuse
and cap properly crimped — sacked if necessary, if it is a wet
hole — and then fastening the cap securely in the cartridge and
shoving them in the hole and gently tamping that and then
putting tamping over the top of it.

Q Can you say, if dynamite is loaded in that manner, it
is the ordinary and safe way of loading it — what can you say,
if there is anything mysterious about dynamite, or something
that no one can understand — what would you say as to that?

A No, there is nothing nn^sterious about d^^namite. The
properties of dynamite are well knoAvn ; by that I mean the
chendcal properties — of course the other properties are gen-
erally too.

(J A premature or unexpected explosion of dynamite
will not occur without some cause?

A Most certainly; there must be some cause for it.

Q To go back again to the making of dynamite and the
effect of age upon it — what is known as spontaneous combus-
tion— that it may explode by itself — what are the causes of that?

A The cause — well, there are several causes of that. One
cause is improper manufacture, to begin with — the leaving of
free acid Avliich is used in the manufacture — if the nitro-gly-
cerine is not watched properly, to begin with, and there is any
free acid left in it that free acid — the mere presence of the
free acid tends to cause decomposition of the dynamite. This
decomposition proceeds with ag(% and in such a state, when par-
tially decomposed, the nitro-glycerine is extremely subject to
shock, or it is liable to go Avithout any apparent excuse at all
for it — simply go off from what we call spontaneous decom-
position, or sy)ontaneous ex])losion. That is one reason. An-

104 JOHN P. JOHNSON VS.

other reason is due to impure materials in manufacture. A
third reason is exposure to a high temperature. If dynamite is
exposed to a temperature, say, of 100 to 110 degrees Fahrenheit,
it is liable to the same action — and moisture will also cause
the same thing, and the action of direct sunlight sometimes
has been known to cause it also. There might be other reasons
I don't think of.

Q Dynamite in that condition, or in such a condition that
it is liable to spontaneous explosion or decomposition — what
can you say as to what amount of shock — whether a light touch
or a heavy touch — is required to explode it?

A Well, it has been known to go olf without any touch
at all.

Q And a small shock —

A (Continuing) — so that, if it does that, of course the
more shock that is applied to it, the more likely that it is to
go off.

Q If it appears that the dynamite is more than two years
old and that it has discolored the outside of the wrapper and
that there is an oily moisture or substance around the wrapper
— what causes could have brought about that condition?

A Well, the causes that I have just enumerated.

!M1\. (tKAVE8: I desire to interpose the same objection
that the question is not based on any fact in this case.

( Objection overruled. Exception noted for defendant. )

THE COURT: The jury will understand that it is not the
province of the Court to decide what the evidence in the case is,
but anything that counsel can reasonably contend is established
by th(» (nidencc* may serve as the basis for admitting other evi-
dence. Wliether there is any real foundation for such evi-
(hMice in the case is a question for the jury.

.Mli. LrXD: I believe you answered that before?

A I Indieve I answered practically that same question be-
fore.

CROSS EXAM INATION.

Q (Mr. (irav(»s) Counsel asked you if there was anything
mysterious about dynamit(». Th(^ r(»al mystery occurs, does it

THE KATALLA COMPANY 105

not, when the dynamite and the man who i.s using it get to-
gether— that is where the difficulty arises, is it not? The
mystery arises, in other words, in the handling of it?

A I said there was no mystery, I believe.

Q — in the dynamite itself — but I said the mystery arises
when the man comes to handle it. In other words, dynamite
is a very dangerous agency, is it not?

A It is, to a certain extent, yes.

Q Nitroglycerine is a dangerous substance?

A It certainly is if it is applied rightly.

Q In the handling of it many accidents occur — that is true,
is it not — a great many accidents occur in the handling of it?

A Are you referring to nitroglycerine or dynamite now?

Q Put it dynamite — many accidents occur in the handling
and use of dynamite?

A If you make that misuse of dynamite and an improper
handling, I will say yes.

Q That is exactly what I mean.

A Yes.

Q In the handling of dynamite there are many accidents,
whether it conies from mishandling or otherwise, there are a
great many accidents?

A Yes, quite a number.

Q And the rule is, is it not, that accidents from the use of
dynamite come through the improper use of it — improper hand-
ling of it?

A Generally.

Q And when you hear of an accident occurring in a mine
through the use of dynamite, it is generally because somebody
has been negligent in the manner of its use, is that not true?

A I believe that the greater proportion of accidents due
to dynamite are due to that cause.

Q Now then, counsel put this question to you, that if this
dynamite was deteriorated so as to be very dangerous and that
it was being loaded in this hole properly and carefully and it
went off — you said that your conclusion would be that it went
off because the dynamite was in a dangerous condition?

A Yes.

106 JOHN P. JOHNSON VS.

Q Because there could not be any other cause under his
question, could there be?
A No sir.

Q And that was the reason you answered it that way?
A Yes.

Q If I should say to you, however, that it not appearing
that there was an^-thing wrong with the particular dynamite
and that on the 26th day of May, 1910, a man brought some
dynamite into a tunnel, that it does not appear what the age
of that dynamite is or that it had deteriorated in any respect;
that that dynamite was taken and loaded into a hole that had
been blown out before — which d} namite had been exploded in —
and that in ramming that powder into that hole there was an
explosion. What would be your judgment as to what caused
it — there not appearing anything one wa^^ or the other as to
the condition of the powder?

A Tliat is a pretty broad question to answer.

Q It does not require an expert to answer that — it re-
quires a little common-sense, isn't that about all?

A Well, I can't answer that question unless I know some
of the conditions. If you say thej simply loaded it into the
hole, I don't know how.

Q Without auy knowledge that that powder was good or
bad; without any knowledge as to exactly what the man was
doing to it at the time the powder exploded, you can't tell
what caused the explosion, can you?

A No, I could not.

Q It is pure guess-work?

A Yes.

(^ That statement being made to you though, in a great
majority of cases, it is a fact that the man has im])roperly used
the powder, is it not?

A Well, when a])])lied to loading T don't think it is, because
most of the accidents du(^ to the use of dynamite occur in thaw-
ing the dynamite.

Q You hnve heard of cases where the holes hav(^ failed to
blow up?

A Yes.

THE KATALLA COMPANY 107

Q That generally makes a jagged hole where the drilling
has occurred, it is apt to splinter the rocks?

A Do you mean a misfire or the hole —

Q Misfire — I mean where the explosion of the dynamite has
failed to blow it out?

A It has exploded but it has not broken the ground?

Q If has not broken it out?

A It just exploded in the hole?

(} That is apt to shatter the hole?

A It usually does, yes. It generally cracks the surround-
ing rocks at least.

Q Such a hole is mucli more dangerous to fill than a hole
that is evenly drilled out, is it not?

A No, I don't think so, I don't believe it is. It might be
under some circumstances, but ordinarily I don't think it is.

Q Have you had any experience with cases of that kind?

A I have.

Q Now, Mr. Laucks, as I understand you, time in showing
any deterioration of dynamite is chiefly influential in that re-
gard because it gives so many opportunities for the nitro-gly-
cerine to separate from the sawdust or other inert substance?

A That is one of the reasons, yes.

Q If it is kept at an even temperature, preserved from ex-
tremes of heat and cold and preserved from moisture it takes
longer to deteriorate than it otherwise would?

A It does.

Q If you take dynamite and unload it, haul it over the ice,
and lay it out in the snow and put it in sheds for five or six
weeks, so that the wrapper becomes discolored by moisture —
that treatment and that method of handling it would cause
it to deteriorate rapidly, would it not?

A It would — a moist climate.

Q If dynamite is put in a wet or damp place and held for
five or six weeks, it would deteriorate very rapidly under those
conditions?

A It would.

Q Dynamite that has deteriorated, as you say, so as to go
off suddenly, easily, that will occur whenever it is given a very
severe shock, will it not?

108 JOHN P. JOHNSON VS.

A Not necessarily a severe shock. It will when it is given
a severe shock, but if voii mean whether it needs a severe shock —

Q I sav a severe shock will exi^lode it?

A Yes.

Q If a box of dynamite is put near a hole where a blast has
exploded suddenly and if the box of dynamite is blown to pieces
and the dynamite is scattered all around over the surrounding
rocks in the tunnel and that dynamite does not explode, would
vou sav it was badlv deteriorated?

A I hardly heard the question.

Q Suppose that I have a box of dynamite situated in front
of a hole and I explode the hole so that the box of dynamite is
blown all over the rocks and the dynamite is blown all around
over the rocks in that neighborhood and it does not explode, is
that dvnamite verv badly deteriorated?

A No, I should not say that it was.

RE-DIRECT EXAMINATION.

Q (Mr. Lund) To what extent would it be deteriorated?

A How is that?

Q Does dynamite sometimes get to such a state that it
won't explode at all?

A It does when it is frozen.

Q If those remaining sticks in the box were frozen they
would not be liable to be exploded by the explosion in the hole,
would they?

A Dynamite that is frozen is very hard to explode.

Q Assuming that the box was not, as stated by counsel,
in front of the hob* but that it was alongside of the hole and
the explosion took ])lace in the hole, the force of the explosion
taking effect away down at th(» bottom of the hole and loosening
the rock, and that two men in front of the hole that were doing
the loading were not killed, what would you say as to why that
powder or dynamite in the box was not exploded?

MR. GRAVES: I object to that on tlie groun<l that it does
not call for an expert opinion.

(Objection overruled. Exception noted for defendant. )

THE KATALLA COMPANY 109

A Well, there are several possibilities there. One that it
is frozen and the other that it is good dynamite and got the
full force of the blow; and the other is that it didn't get the
full force of the blow in such a way that it would explode it.
What I mean is, to set off an explosion requires a certain kind —
with good dynamite, requires a certain kind of blow, that it
requires a certain kind of force to set it off — it is pretty hard
to explode it.

Q Assuming that this dynamite, having the ajipearance
that I have described to you of discolored wrapper and oily
substance around the wrapper, is more than two years old — very
nearly three years old — that it is delivered to a place on the
work about six weeks or two months before an accident hap-
pened in the use of it, and from the time that it is delivered
on the work until the time of the accident it is kept in a shed —
a powder-house constructed of logs and boards, so as to be free
from moisture and wet ; what would you say as to whether the
condition of the powder was brought about before it was de-
livered on the premises or afterward?

MR. GRAVES: I object to that as not a proper hypo-
thetical question for an expert, and as argumentative pure and
simple.

THE COURT : As I understand it, the question reads if the
dynamite was kej)t in a dry place during the six weeks before
it was used, when did it become deteriorated?

MR. LUND: Yes.

THE COURT: I think tliat has sufficiently appeared from
the testimony of the witness already. Tf there is any further
points you want to bring out on that you may do so.

Q (By a Juror) I would like to know wliether dynamite
confined is more susceptible to explosion than when it is loose?

A You mean dynamite, now, and not nitroglycerine?

Q Dynamite?

A You mean — yes, if it is confined tightly; for instance, if
it is placed in a metal tunnel, then it is more susce])tible to
explosion. That is the object of placing it in i)aper cartridges
so that it is not confined — so that it will criye when anvthimr
happens to strike them. Where it is put into a drill hole it is
no more susceptible to an ex])losion than if it was Ivino- loose

110 JOHN P. JOHNSON V?

on the ground. The force of the explosion is greater but it is
not more susceptible.

(Witness excused.)

FRED JOHNSON, called as a witness on behalf of plain-
tiff, sw orn, testified as follows :

Q (Mr. Lund) You went up there to Alaska with Mr.
Johnson here.

A I can't hear good.

(} Now then, when you want me to speak loud, you speak

loud, too.

A Yah.

Q You live in Roslyn?

A Live in Roslyn.

Q And you are a miner?

A Yes.

Q Ho^^' long have .you been a miner?

A Twenty-two years.

Q And you went to Alaska with John P. Johnson?

A Yes.

Q And traveled up there with him, together with him?

A Yes.

(} And you went to work with him on Section 119?

A Yes.

(2 And started mining with him there?

A W(» started to drill together.

(I You started drilling together there and when he left

there and went to Section 123 you went with him?

A Yes, we went together.

(} And what time did you go to Section 123?

A About the 24th of ^lay, or tlie 23d — I worked nineteen
days.

(} And then you stni-ted to do what work?

A Drilling.

<2 In the tunnel?

A Y(\s.

(2 And who was drilling with you?

THE KATALLA COMPANY 111

A Johu Johnson.

Q This man that is suing here? (pointing).

A Yes.

Q And how many days did you work in there before the
expk)sion occurred?

A We worked two days and a half and about an hour more
than a half a day.

Q On the 27th day of May, this explosicm took place?

A Yes.

Q And where were you — you were working in the tunnel
at that time?

A Yes.

Q And what work were you doing there?

A I was drilling.

Q And how far from the hole that was being loaded?

A About twelve or thirteen feet.

Q And were you using the hammer or were you turning
the drill?

A No, I turned the drill.

Q Can you tell us in any way what you saw about that ex-
plosion and how it came about?

A Well, I saw them come in with the powder — Riley came
in with the open box of powder, I am not quite sure — about
three-quarters of a box — and he had his partner in there, and
he comes in with the box of powder and the loading stick — a
wooden stick.

Q Who did you say came in there with the powder and the
loading stick?

A Riley.

Q Riley?

A Yes.

Q And who was with him?

A He had a box of powder on one side and a loading stick —
a wooden stick.

Q The wooden loading stick in the other?

A Yes.

Q And what did he start to do?

A His partner was in there, and they started to clear out
the hole — they cleared out a little dirt out first.

112 JOHN P. JOHNSON VS.

Q And in what manner Avere they loading — how were they
loading that hole?

A His partner was cutting up the powder with a knife and
he was behind, and handed it to him and he put the powder in
the hole and pushed it in with the loading stick.

Q And what happened — what took place?

A Well, I was sitting, looking like that, working with the
drill, and he gave him one stick after the other and put it in
and I looked around, and I looked, I know, as I was turning the
drill and I see come a white light come and the explosion come.
As soon as the explosion come I don't know anything for the
time — I rolling backAvards and forwards and the smoke and I
was rolling and at last I come down pretty near to the face of
the tunnel and I could not walk on one leg, and my pants —
them overalls was split up right through there and I jumped on
one leg. I see a light outside, for I got my senses still, and I
jump on my one leg.

i} Now at that time you saw that wliite flash of the explo-
sion, what was Riley doing with the loading stick?

A He was imtting in ])owder in tlie hole with the loading
stick.

(2 In what manner was he ])utting it in?

A He put it in the hole.

Q Was he using any unusual force, or was he doing it in
the ordinary way?
A Eh?

(} You don't understand uw — was Iviley i)utting it in with
any unusual force* — how was he loading it?

A No, he was putting it in easA' with the stick, putting it
in easy.

(2 How h)ng were you hiid u]) there after the ex]>losion?
A I was laid u]) that day and 1 was working ( learing up
the nc^xt day.

(^ And <lid you k<M*]) on working tliere?

A Well, they were drilling ami clearing nj) that muck —
that muck from that hole that broke*.

(^ And you ke])t on working there?
A Yes, I was working there.

THE KATALLA COMPANY 113

Q Did you see the dynamite that was used there at the
camp before the explosion ?

A Yes, I see some of it, yes.

Q Where was it kept?

A Well, I don't know.

Q Where did you see it?

A I saw them blasting in the tunnel.

Q And what did the dynamite look like?

A It looked kind of dry — that it had kind of black splotches
on the covering of it.

Q And did you see the date stamp on the dynamite?

A Yes, I see the stamp.

Q What was the date and the stamp on it?

A There was a twenty and a fifteen — 15th day of May, 1907.

Q And Avhat did the paper on the outside look like?

A It was kind of dry and wet and kind of black spots on
the covering.

Q On the covering?

A Yes.

Q Tell us whether or not there was any indications that
you could see of any oily substance or moisture on it?

( Objected to as leading. )

A Well, that is more than I could say — there was some.

Q How long did that dynamite remain at that place — how
long had it been kept there — how long did they keep it there
after this explosion?

A I don't know how long — I don't know that they kept it
at all.

Q Do you know Mr. Jolm A. Johnson?

A Yes.

Q Do you know when he came to that place?

A He was in the same company I was.

Q But he was not on the place at the time of the explosion,
was he?

A No.

Q When did he come there?

A I think it was the day after.

Q Was the same dynamite when he came there as was there
when the explosion occurred?

114 JOHN P. JOHNSON VS.

A Well, we didn't see — we didn't see no dynamite right
after.

Q And did tliev get in any new dynamite in the meantime?

A Yes, they got the new dynamite in there.

Q I mean between the time of the explosion and the day
that Johnson came up there?

A Xo, they was none new, and they didn't use any either.

Q What I want to ask you is if the same dynamite was on
the place there? —

A Yes.

Q — when Johnson came up there that was there when the
explosion occurred?

A The same dynamite was there, yes.

Q There had no new dynamite come in there in the mean-
time?

A Xo. There was no new dynamite came when he came
there.

Q And who was the boss there?

A I don't know. I know his name — they called him, I for-
get his name.

Q You know the company's engineer?

A Yes.

Q The one that was in charge there?

A The engineer.

Q The engineer in control there?

A Yes — he keep the tunnel in shape.

Q Yes — by what name did he go — what was his name?

A I d(m't know his name.

Q Wlio was he representing there, do you know — do you
know who he was tliere for?

A Yes, I know what he was there for.

Q I ask(Hl you wlio he was there for, if you know?

A I think that Katalla Company he work for.

Q What was he doing?

A He was engineer.

Q Engineer?

A Yes.

(2 Tell us whether or not if ycm heard him make any state-
ment in reference to that powder within a day or two?

THE KATALLA COMPANY 115

A Yes.

Q Within a day or two after the explosion?

A Yes.

MR. GRAVES: I object to any statement by some one
whose name he doesn't know and whom he claims was an engi-
neer, after the explosion.

MR. LUND : He was the engineer in charge of that work
at the time of the explosion, from his testimony, and his admis-
sion is admissible.

(Objection sustained.)

CROSS-EXAMINATION.

Q (Mr. Graves) When did you go to camp 123?

A It was the 24th and 23d some time.

Q Of May?

A Of May.

Q You went with John P. elohnson?

A Yes, with Yohn Yohnson.

Q You worked there two days and a half?

A Yes sir.

Q Did you work any after the explosion?

A Yes, I worked after the explosion.

Q You worked there after the explosion?

A Yes.

Q How long did you work there?

A I worked there till the tunnel was through.

Q Did you ever go into this powder-house?

A I was not in there, no.

Q You had seen a box with a stamp on it — where was that
stamp — on the end of the box or on the end of the powder?

A On the side of the stick.

Q On the powder?

A On the stick.

Q On the stick?

A Yes, yes.

Q (Mr. Lund) Where was the stamp on the stick, was it
on the wrapper?

116 JOHN P. JOHNSON VS.

A Yes, on the paper.

Q On the paper?

A Yes.

Q And did you see any stamp on the box — on the wood?

A I didn't look on the box.

Q But you saw the stamps on the —

A On the stick of powder.

JOHN ANTONE JOHNSON, called as a witness on behalf
of plaintiff, being first duly sworn, testifies as follows :

Q (Mr. Lund) You live in Seattle?

A Yes sir.

Q Any relation to Mr. Johnson the plaintiff in this action?

A No sir.

Q How long have you known him?

A Nine or ten years, since I came to this country.

Q What is your occupation and business?

A My occupation is miner — I am doing lumbering work
now at the present time.

Q And you went to Alaska in the spring of 1910 with
Johnson and those other men?

A Yes.

i} And what can you ^aj as to conferences you had in
Cordova with any one in reference to going to work?

A We were a gang of ten or eleven men together that came
down from Seattle; we came down to the offices on the dock
and \v(^ had one spokesman named Mike Nugent, and he spoke
to the clerk in the office while we were there and he got the pass
and we got a mcnil ticket and went up on the station and took
the train up to mile 49 from Cordova.

Q Go on.

A And w(^ Iiad from Seattle — we got a note to Mr. INIurchi-
son that we had answered an ad in a news])a])er calling for men
to work on the scnticm uj) there and when we came up to 49 the
first thing \v(» did we have our meal and we walk across the ice;
on th(^ other side we had to wait until the train came in with
those fiat cars an<l box <ars with lumber and material and so on.

THE KATALLA COMPANY 117

And they had ferries going across and there was a narrow strip
of water cut through the ice and they loaded all kinds of ma-
terial and a lot of powder amongst them, and we got over there
on the north side of the river and we were told to go to work and
start in help packing powder, and so we did and we i^ut it on
the snow bank, along the railroad track, and the train came in
and we all went in the box car, I don't know how many, a
couple of hundred men altogether I guess, and then went up to
Tiekill, and when we got up to Tiekill the next morning, in
the morning we saw Mr. Murchison about work, as we were
expecting to go to station work. He said he had not station
work at the present time, that he would see later on, but he
says "You fellows have to go up and go to work." And then he
give us a note up to George Raildy — he was the foreman of
mile 119, and we brought the note up there with us and we all
came there, all that went up there and started work and I
kept on working there.

Q And you all went on station 119?

A Yes sir.

Q You and Johnson and some other men?

A Yes.

Q And when Johnson and Carson and his partner left
there and went to 123, did you go along?

A No sir.

Q You remained at ?

A I remained at 119.

Q And how long did you remain there?

A The day after the explosion a man came down and said
they wanted men up there — the man went down to Tiekill to
get the foreman, and I asked him if there was a job up there and
how much they paid and he told me how much they paid — they
would increase the wages — and I went up there a couple of
days after the explosion occurred.

Q A couple of days after what?

A After the explosion occurred.

Q What was the first you knew about the explosion?

A When this man came along the line.

Q And told you about it — what did you find out when you
got up to 123?

118 JOHN P. JOHNSON VS.

A I first stopped at 122, where the hospital was, to see Mr.
Johnson. I found him in bed.

Q Just answer my question — what did you find out when
you went up to 123 ?

A I found the tunnel.

Q How far was the tunnel in?

A Well, I could not say, twenty-five or thirty feet, I should
judge, at that time.

Q What was the work going on there?

A Yes, there was a little work going on, shoveling.

Q Shoveling out the — ?

A Loose dirt, the muck.

Q The broken rock in the tunnel?

A Yes.

Q And what did you next do?

A I drilled.

Q What did you find the men kept their dynamite in?

A They had a log cabin that was called the powder-house.

Q Built of logs?

A Built of logs and boards.

Q In what way was it protected from the weather?

A It was boards on the ends and canvas on the top, boarded
tight, with a made door.

Q Did you see the dynamite that was in the powder-house?

A I saw some of it.

Q What was its condition?

A Well, it was pretty bad looking.

Q In what way did it look?

A It looked — the papers were yellow on the outside and
spotted.

Q Was there any stamp or date on it?

A Yes sir.

Q What was the date?

A 15th of :\Iay, 1907.

Q And wliere was that stamp?

A On th(» side of the paper.

Q On tlie dynamite stick?

A On every stick, yes.

Q What did you say?

THE KATALLA COMPANY 119

A On every stick of powder it was stamped.

Q It was stamped on every stick of powder?

A Yes.

Q The men that Avere in charge of the work there — ?

A Yes.

Q Who was the boss of the tunnel?

A Sam Rollin was the boss of the gang.

Q He and some others had the station contract?

A Yes.

Q Who was the engineer in charge?

A Mr. Wingate.

Q How large a section of the road did he have under his
supervision?

A Well, as far as I have seen, he worked from 121, I think,
to 132, up to Chitina, I think up to the crossing of the river.
I know I saw^ him way up there.

Q What did he do?

A His work consisted of surveying the road and giving
points to the men how to turn the tunnel from one side to the
other, keeping the grade of the road.

Q What orders or directions did he give?

A He told them which way to start a hole, how high up
they were going to have it or how low they were going to go
with it.

Q Who was building that road, if you know?

MR. GRAVES: I object to the question in that form, he
can state the fact that he observed.

THE COURT : With a large enterprise like this there are
very often many engaged in the building, from the owner down
to the workingmen, and I think the question is too broad, un-
less the witness has some definite information on the subject.

Q (Mr. Lund) W^hat do you know about the method of
constructing the road, Mr. Johnson, and who it was that built
it and who Mr. Wingate represented — tell us what jou know
about it?

A Only what I heard and what I understood, that Mr.
Wingate —

120 JOHN P. JOHNSON VS.

MR. GRAVES : I object to the witness' answer to that
question — it shows that it is based on hearsay.

(Objection sustained.)

Q (Mr. Lund) Where did Mr. Heney's men live?

A How?

Q Where did Mr. Heney's men in the construction of that
work, where did they reside?

A Their headquarters was in Tiekill.

Q Their headquarters was in Tiekill?

A Yes sir.

Q Was there any special mark or sign upon Heney's prop-
erty?

A I think every tent was marked "M. J. H.'^

Q And this engineer, Mr. Wlngate, where did he reside?

A Mr. Wingate, I could not tell you exactly, mile 123 I
think he resided at.

Q Did he reside in any of Mr. Heney's camps?

A Not to my knowledge.

Q Whose camp did he reside in, if you know?

A What they called the engineer's camps.

Q I will ask you whether or not you have any opinion from
what you saw up there as to who Mr. Wingate represented?

MR. GRAVES : We object to his drawing his conclusions.

THE COURT : If there were any signs there or any physi-
cal facts, he may so state, but as to what any one told him I
don't see the materiality of it.

MR. LUND : I will withdraw the witness temporarily.

(Witness excused.)

JOHN ANTONE JOHNSON, recalled on behalf of plaintiff,
testifies as follows :

Q (.Mr. Lund) Now 1 will ask you, Mr. Johnson, what
was the nature of Mr. Wingate's duties up there at the camp,
as he performed them?

MR. GRAVES: Ask him what he did, so there will be no
misunderstanding.

Q (Mr. Lund) What did he do up there?

THE KATALLA COMPANY 121

A He gave the grade, the survey as you call it, giving the
grade, giving the directions to the men which way to work to
drill the holes.

Q And in reference to the explosives?

A He told them not to use that bad powder no more.

Q When was that, Mr. Johnson.

A That was a few days after the explosion.

MR. GRAVES : I move to strike that out, upon the ground
that any statements or declarations by an agent made after the
occurrence of an act is not evidence, and it comes under the ban
of being merely hearsay and it is not within the scope of the
employment of any agent.

I call your Honor's attention specifically to the case of
"Cook versus The Stimson Lumber Company," reported, as I
recall, in about the 40th Washington State Reports, w^here it
was allowed to be testified that the manager of the Stimson Mill
Company the day after the accident stated that the particular
logging engine or logging train which was being operated at the
time of the accident was operated negligently and that it had
the defects which were alleged in the complaint; that proof
being admitted, the statement of the agent not being within the
scope of his employment was held not to be binding on the com-
pany, and as prejudicial, and the Supreme Court reversed the
judgment in which a verdict of Fifteen thousand dollars was
given to plaintiff, and sent it back for new trial. That decision
was supported by a careful examination of the authorities touch-
ing the proposition. Here is a declaration made — we are sup-
posed to meet anything which may have been done by our agent
in the course of his duties, but that that agent may at any time
subsequent to the happening of the accident make a statement
or a loose declaration, or any witness can come on here and
testify as to any statement made by such man, in what way can
it be anticipated? The danger of it is obvious. The lack of
authority of the agent to make such a statement is obvious.
(After further argument on the motion the Court ruled as
follows) :

THE COURT : I think it falls within the well recognized
rule that what an employee says some time after an occurrence
is not evidence against the employer. He is not employed to

122 JOHN p. JOHNSON VS.

make that admission, and if he forms a conclnsion of his own
and gives utterance to it, that is not binding. If this party has
any information, the way is to get at him, and to make him a
witness, and not to take his unsworn and, very likely, uncon-
sidered statement made to a man in the street as evidence of a
fact. I will sustain the objection and the motion to strike will
be granted. The jury will be instructed not to consider as in
the case the remark attributed to the engineer. Proceed.

MR. LUND : For the purpose of the record — the jury will
understand that mj statement is not to be considered as evi-
dence— I wish to make an offer of proof in this case in this
matter. I offer to prove b}^ the testimony of this witness that
two days after this accident Mr. Wingate, the resident engineer
for the Katalla Company.

MR. GRAVES : I do not desire to be captious about the
matter, but the question was asked, answered and stricken — it
is all in the record.

MR. LUND : But not the particular matters tliai x wish to
have the question raised upon.

MR. GRAVES : Well, I suggest you put it in the form of a
question, so that the Court can rule upon it.

MR. LUND : It all goes in under the ruling that is already
made.

MR. GRAVES: Then the offer had better be made after
the jury retires at twelve o'clock.

THE COURT : If you have any further question you had
better put it, Mr. Lund. Of course one reason for the exclusion
of testimony of this kind is the ease with which such testimony
can be manufactured; that is one reason, no doubt, for the ex-
istence of the rule.

Q (Mr. Lund) At the time that Mr. Wingate made that
statement, where was he, Mr. Johnson.

MR. (iRAVES : I object to anything in reference to or that
relates to the matter which the Court has stricken.

(Objection overruled. Exception noted for defendant.)

A Mr. Wingate was standing with Mr. Rolliil and several
other men and myself; I should judge by the blacksmith shop,
which is about from sixty to seventy feet away from the face
of the tunnel north of the end of the tunnel.

THE KATALLA COMPANY 123

Q (Mr. Lund) How long was that after the explosion?

A About three days after; I can't exactly say the date. It
was the first day I was uj) there — the third day after I started
to work.

Q And w^hat did he say as to where that powder had be-
come defective and dangerous?

(Counsel for defendant interposes the same objection. Ob-
jection sustained.)

Q Did I ask you yesterday how you brought Johnson out
of there — did you tell the jury about the journey out from there?

A Not that I remember.

Q Now, after Johnson was injured, Avhat did you see of
him?

A The first I met him after the explosion was, when I came
from mile 119, was when I stopped over from the hospital to
talk with him and look at him and then nearly every day, or
every other day, we were down there to see them and get our
mail.

Q And then what did you do finally with him?

A He came up to the camp and said he thought it was best
to get home because he didn't —

Q Just tell what you did.

A He wanted to go home, and I says —

Q Don't tell what was said, tell us w^hat you did and what
took place and all that?

A I told him to go home and we — I took him down.

Q When did you take him; when did you start with him?

A On the 19th, I think, of July.

Q And what was his condition then, as to whether he was
able to walk or not?

A He could not walk except a little on two crutches — he
had to be helped along.

Q And you brought him out to Tiekill?

A Yes.

Q You came on the boat?

A Yes.

Q And from Tiekill down to Cordova?

A Yes.

Q And from there on down to Seattle?

124 JOHN p. JOHNSON VS.

A Yes.

Q And you went home with him to his home in Roslyn?

A No sir. I stayed here in Seattle. I saw him on the train.

Q You saw him on the train and then he went home by
himself?

A Yes.

Q What assistance or help did he require in going out?

A He required help to dress himself and to walk around,
except on a level floor.

CROSS-EXAMINATION.

Q (Mr. Graves) You went up to Cordova and from Cor-
dova to Tiekill with Mr. Johnson.

A Yes.

Q You and the other Johnson and Carson, you all went
together?

A Yes.

Q You live in Seattle now, Johnson?

A Yes.

Q You didn't come down here from Roslyn for the purpose
of testifying in this case?

A No sir.

Q You stopped at 110 to work, did you?

A Yes.

Q Stayed there until after Johnson got hurt?

A Yes.

Q How many days after he got hurt was it you went up
there?

A A couple of days.

Q Where did you go to work when you got there?

A :Mile 123.

Q In the tunnel?

A Yes.

FRED JOHNSON, recalled on In^half of plaintiff, testifies
as follows :

THE KATALLA COMPANY 125

Q (Mr. LuDd) You told us yesterday, Mr. Johnson, that
you were within a few feet of the hole when it exploded?

A Yes.

Q Now after that explosion occurred, what did you do?

A After that explosion?

Q Yes, after the explosion?

A After the explosion I went in back again.

Q Went in back again?

A Yes, after the smoke and after the muck.

Q After they got the men out?

A Yes.

Q You went back in again?

A Yes, but I could not tell very well, but I was there after
they got the men out.

Q And what did you see or notice in the muck?

A I picked up about eight or ten sticks, I can't say ex-
actly— of powder.

Q Of dynamite?

A Yes.

Q Where had those sticks of dynamite come from, if you
know?

A They was left in the box.

Q From which the men were loading the hole?

A Yes, where they were loading the hole, they were left in
the box.

Q What was the appearance of those sticks, as to whether
they were the same that you saw that were in the box when they
brought the box in?

A Yes, I saw the box when they brought them in.

Q How long did you work in the tunnel after that?

A I was there until the 18th of May.

Q Till what time?

A 18th of July, I should say.

Q You worked there then for about six weeks.

A Yes.

Q How far in was tlu^ tunnel when you (^uit work — or how
far was it when you commenced work?

A About twenty-five or thirty feet.

Q How far was it in when you quit work?

126 JOHN p. JOHNSON VS.

A About one hundred feet.

Q How was the tunnel lighted when you went to work?

A The same as other tunnels.

Q Well how — what were the lights — what kind of lights?

A What kind of lights we had?

Q Yes.

A We had daylight there then.

Q You had daylight there then?

A Yes sir.

Q Just what light came in through the mouth of the
tunnel?

A Yes sir.

Q You had no lamps or electric lights or anything of that
kind?

A No sir.

Q You used no torches?

A Not in the davtime.

Q What color was the wrappers on this powder?

A It was spotted.

Q What color — ^^ellow, white, red or black?

A Red, black, blue and yellow.

Q Different colors?

A Different colors.

( Witness excused. )

DR. A. O. LOWE testified that he is a physician and surgeon
residing in Seattle; that he i)rofessionally treated the plaintiff
in the fall of 1910, making an X-ray plate of the injury, but the
plate has been destroyed; that at the time of his treatment he
examined plaintiff's foot.

He further testified as follows :

"(^ I Mr. Lund I What did you find the condition of his
foot to be?

A 1 found the bones considerably jammed together and
considerable scar tissue on the foot and one bone overhi])])ing
another somewhat, and those several conditions resulted in
making an abnornial foot, an<l it had h)st most of its elasticity,

THE KATALLA COMPANY 127

due to the scarred tissue aud the bones bcnug jammed together
and uniting in that condition.

Q And you have examined him again now?

A Yes.

Q And what do you find his condition to be now?

A I find the foot is very much smaller than the other and
non-elastic — it hasn't the elasticity of a normal foot — due to the
adhesions and the scab and he complains of it being tender on
pressure, and the arch is somewhat flattened — it hasn't the arch
of the other foot — it hasn't the same instep as the normal foot.

Q Whether or not there are any bones missing from the
foot noAv — did you particularly examine the two toes on the
outside?

A I did not examine them as to that, no sir.

Q What can you sa^^, in your opinion, the result of that
injury is going to be to Mr. Johnson, assuming that he is a
laboring man?

A Well, that foot will certainly not stand the work that
the other will, and it probably will be more or less painful after
heavy strains and heavy work.

Q Would you consider that a man in his condition as he
is today is capable of doing a day's work as a laborer?

A He would not be able to do the work he would with a
noruml foot.

Q He would not be able to hold a position as an ordinary
laborer for any length of time with that foot?

A The probabilities are he would not.

Q For how long a time is that injury going to last, Doctor?

A I doubt if there will be much improvement over the
present condition."

SAMUEL MURCHISON, recalled, testified as follows:

"Q (Mr. Lund) As I remember, Mr. ^lurchison, you were
the superintendent in charge for ^Ir. Heney up there?
A Yes, I was.

Q At this time, in the spring of 1910, where was Mr. Heney?
A In California.

128 JOHN p. JOHNSON VS.

Q You represented Mr. Henej?

A Yes.

Q And I think I asked you, but I am not sure and I will
ask you now again, for what concern was Henej constructing
the road ?

A For the Katalla Company.

Q And you remember station 123?

A Mile 123?

Q That was out from Tiekill how far?

A Twenty-three miles, or twenty-two miles.

Q That was part of the road that Heney was constructing
for the Katalla Company?

A Yes.

Q And when was that work on station 123 commenced?

A In January of that year — January or February of that
year.

Q And when was the supply of powder or dynamite or ex-
plosives sent in there?

A I believe we began freighting up there about the last of
January.

Q I will ask you if you didn't make the statement, to re-
fresh your memory, that that dynamite was sent up in April —
didn't you make that statement?

A Which dynamite?

Q The dynamite that was used at station 123.

A Well, yes, we sent some up in April and some in ^larch
and some in February.

Q And that which you sent to station 123 —

A During those months we supplied powder to them at
those different times.

ii Is it not a fact that that tunnel work had not been going
on or commenced about the first of April that year?

A It began b(»fore that, if my memory serves me right.

Q Where did you get the explosives that you sent in there?

A We got them from The Katalla Company.

Q Where?

A At Tiekill.

Q How did you send them in?

A With teams.

THE KATALLA COMPANY 129

Q And how long were they in your possession?

A While they were in transit from Tiekill to the different
work along the line.

Q From Tiekill to 123 is how far?

A About twenty-two miles.

Q Twenty-two miles?

A About.

Q How long would the explosives be in your possession
while they were being transported that distance?

A Probably about five or six hours or eight hours some-
times.

Q And Avhile they were in your possession were they ex-
posed in any way to the weather or any conditions which would
tend to render them dangerous?

A I think not,

Q I asked you yesterday if you knew whether there was
anything wrong with the dynamite when you took it and sent
it in. I will ask you now if you know now how old it was?

A No.

Q You got it, as I understand, at Tiekill, from the Katalla
Company?

A Yes."

Q Are you acquainted with Mr. Wingate?

A We had a man up there, a resident engineer of that name.

Q Was he in charge of station, or section, or mile 123?

A I believe that was his residency or part of it.

Q In whose employ was he?

A I believe he was in the employ of the Katalla Company.

Q Was he one of Heney's men?

A No.

Q What was his business up there?

A To give grades, lines, levels, and superintend the work,
to a certain extent, for the Katalla Company.

(J Tliat was what he was doing there — now there is a con-
tract— was this work done under a written contract or bv verbal
contract, do you know?

A W^hich work?

Q All the work that Heney did up there.

A So far as I know, it was done under a contract.

130 JOHN P. JOHNSON VS.

Q A written contract, YOU mean?

A Yes, as far as I know.

Q Did jou see it?

A No; I saw a copy.

Q You have seen this copy that I hold here (showing) ?

A I don't know that I saw that copy.

Q Where was the copy?

A On the work.

Q On the work?

A Yes, at our office at Tiekill.

Q And that is the copy you went by?

A Yes.

Q That is the contract that was carried out by you?

A Yes, so far as I know.

Q And by Mr. Heney at that time?

A Yes, so far as I know.

Q And the provisions in that copy as you had it up there
was carried out by you and Mr. Heney?

A Well, pretty closely, I think.

Q Now, I will ask you, Mr. Murchison, if this provision was
carried out there —

My purpose and object of this, your Honor, is to go through
the copy which I have and show by the witnesses — by this wit-
ness and other witnesses — that the conditions and provisions
and agreements that are contained in this copy were the provi-
sions that were carried out and lived up to by both parties to
this contract.

T will ask, you, Mr. Murchison, if the work was not to be
constructed in a substantial and workmanlike manner to the
satisfaction of tlie chief engintn^r?

MK. GRAVES : Why not just pass the contract to him and
let him see it.

'SlJl. LT'NI): I prefer to do it my own way, Mr. Graves.

THK rorirr : I see no reason of prolonging the inquiry on
these immaterial points.

Q (^Ir. Lund ) Take and look at that copy and look over
it, Mr. ^lurchison, and tell the jury whether that is identically
the same as the co])v which vou had on the work and bv which
vou were doinu; the work?

THE KATALLA COMPANY 131

A Before I could say that I would have to have our other
copy. I could not recall it from memory.

Q You could not, from memory now, say whether that is an
accurate copy or not?

A No, I could not say. Before I could say that is an ac-
curate copy I would have to compare this with the one that
we had.

Q I asked you yesterday if you knew whether there was
anything wrong with the dyanmite when you took it and sent it
in. I will ask you now if you know now how old it was?

A No.

Q You got it, as I understand, at Tiekill from the Katalla
Company ?

A Yes.

MR. LUND : That's all.

MR. GRAVES : That's all.

(Witness excused.)

J. H. YOUNG testified as follows :

Q (Mr. Lund) You live in Seattle?

A Yes.

Q Engaged in what work?

A I am president of the Alaska Steamship Company.

Q And do you remember having a conference with Mr.
McCord some few weeks or months ago in reference to the
contract between Mr. Heney and the Katalla Company as
to the construction of the Copper River Road?

A Yes.

Q Where did that conference take place?

A In my office.

Q Whom did you represent?

A The Copi)er River & Northwestern Railroad.

Q Was that contract between Heney and the Copper River
& Northwestern Railroad?

A No sir.

Q I will show you a paper here marked "Exhibit A refused"
and I will ask you if you have ever seen that before? (showing).

132 JOHN p. JOHNSON VS.

A I don't know that I ever saw this copy before. Not that
I know of.

Q Have you seen the original of that?

A No sir, I never saw the original.

Q You never saw the original contract between the Katalla
Company and Heney for the construction of that road?

A No sir.

Q Now, the conference between you and McCord was in
reference to that contract, Avasn't it?

A Yes.

Q Is the Copper River & Northwestern Railway Company
a party to that contract?

A As I understand it, no ; I don't think it is — it was not —
it doesn't say so.

Q It is not a party to that contract?

A No sir.

Q Had you had any connections with the Katalla Company
at any time?

A Not officially, no sir.

Q Not officially?

A No sir.

Q What was the matter, or the substance of the matter
considered by you and Mr. McCord — was it in reference to
that contract — wasn't it?

A Yes.

Q Now, tell us how the Copper River & Northwestern Rail-
road came to have any interest in that contract which they
are not a party to?

A The Copper River & Northwestern Railroad engaged the
Katalla C()m])any to build a railroad for it, upon which it
was to pay so much money on the cost of that road — they were
to pay the cost and a certain percentage for the building of
that railroad. Charges are entered into there by Heney, the
contractor, which would finally revert to the Copper River &
Northwestern Railroad Comi)any, if allowed, and I was, partly
as representative? of the Co])])(t River Railroad, negotiating with
Mr. .McC'ord as to the outcome of those charges — as to how
those charges should be assesscMl.

Q And you had no instructions and had no previous con-

THE KATALLA COMPANY 133

ference with any of the officers of the Katalla Company in ref-
erence to the matter?

A No sir.

Q The Katalla Company —
A (Continuing) — I will modify that. I would like to
modify that, if the Court please. I had a talk with Mr. Haw-
kins, who was the chief engineer of the Katalla Company.

Q And he is so now?

A No sir, not now.

Q Has the Katalla Company got any officers here in the
city now?

A None that I know of, excepting an assistant secretary
and treasurer.

Q And who is he?

A Mr. McMasters.

Q (By a Juror) Do I understand that you did not rep-
resent the Katalla Company in any sense at that conference?

A No sir.

FRED JOHNSON, recalled, testifies as follows:

Q (Mr. Lund) You told us yesterday, Mr. Johnson, that
you were within a few feet of the hole when it exploded.

A Yes.

Q Now after that explosion occurred, what did you do?

A After that explosion?

Q Yes, after the explosion?

A After the explosion I went in back again.

Q Went in back again?

A Yes, after the smoke and after muck.

Q After they got the men out?

A Yes.

Q You went back in again ?

A Yes, but I could not tell very well, but I was there after
they got the men out.

Q And what did you see or notice in the muck?

A I picked up about eight or ten sticks, I can't say exactly
— of powder.

134 JOHN p. JOHNSON VS.

Q Of dynamite?

A Yes.

Q Where had those sticks of dynamite come from, if you
know?

A They was left in the box.

Q From which the men were loading the hole?

A Yes, where they were loading the hole, they were left
in the box.

Q What was the appearance of those sticks, as to whether
they were the same that you say that were in the box when
they brought the box in?

A Yes, I saw the box Avhen they brought them in.

Q Were those sticks which you picked up of the same
nature?

A They were the same nature.

Q The same kind?

A Yes.

Q How did they correspond with the sticks of dynamite
that were in the powder-house?

A I never was in the powder-house.

Q Afterwards?

A No, I never was in the powder-house.

Q You never was in the powder-house?

A No.

Q How did the sticks of powder that you picked up in the
dirt there in the tunnel correspond with the powder that they
were using there?

A They were the same color on them.

Q (Mr. Graves) Were you the man that went back there
and carried out Johnson?

A I was partner with Johnson.

Q You went and carried him out that time, didn't you?

A I carried him out.

MK. (J RAVES: That\s all.

il (Mr. Lund) I don't know whether I understand the
witness — did ycm carr}^ Johnson, the man that was hurt, John
P. JolinsoTi, did you carry him out of the tunnel after he was
hurt?

A No.

THE KATALLA COMPANY 135

Q What do you mean by "carrying Johnson''?

A I don't look — I was looking at my feet.

Q What did you think that Mr. Graves asked you about—
what do you think that he asked you about now?

A About the powder.

MR. GRAVES: You thought I asked you if you carried
the powder out?

MR. LUND: Is that what you mean — you carried the
powder out?

A Yes, I carried the powder out.

(Witness excused.)

JOHN P. JOHNSON, recalled on behalf of plaintiff, testifies
as follows:

Q (Mr. Lund) I think I forgot to ask you yesterday how
old you are?

A Seventy-three.

THE COURT: Born in '73?

A Yes.

Q (By Mr. Lund) How old are you?

A Born in '73.

Q Are you a man of family?

A Yes, I have five kids — children.

MR. LUND : That is all.

(Witness excused.)

MR. LUND : With the admission of the mortality tables,
which I believe this Court takes judicial notice of — if it doesn't
I will produce them before we close the trial. The plaintiff
rests.

MR. GRAVES : The defendant rests.

Both parties thereupon rested.

Be it further remembered that during the testimony of
the witness I. F. Laucks the defendant by its counsel duly
objected to the witness being permitted to testify in answer
to the following question, upon the grounds that said question

136 JOHN p. JOHNSON VS.

was incompetent and not a proper hypothetical question, to-
wit : ''Q. Assume as a fact that some men are working in
the tunnel on railroad construction, and a box of dynamite is
brought into the tunnel with the sticks to be used in loading
the hole, and two men are loading it, one man is cutting open
the wrappers and the other is shoving the powder down into
the hole with the loading stick consisting of wood in the ordi-
nary manner of loading dynamite, and while in the act of doing
so an explosion is caused by the dynamite in the hole, the
dynamite that is used in loading it being more than two years
old, that the wrappers are moist, with an oily moisture, dis-
colored; what would you say was the cause of that explosion?''
which objection was by the court overruled and the defendant
by its counsel then and there duly excepted to said ruling,
which exception was by the court allowed.

Be it further remembered that after all the evidence and
testimony was in and after both j^arties had rested, defendant
by its counsel then and there duly challenged the sufficiency
of the evidence to sustain or warrant a verdict in favor of the
plaintitf and moved the court to direct a verdict of the jury
in favor of the defendant upon the ground that the testimony
was insufficient to entitle plaintiff to recover; which challenge
and motion were by the court overruled and denied, to which
ruling the defendant by its counsel, then and there duly ex-
cepted, which exception was by the court allowed.

Be it further remembered that the following is the full and
complete charge given by the court to the jury upon the trial
of said cause; that no charge or instructions were given by the
court to said jury upon said trial other than as follows, to-wit:

"INSTRUCTIONS BY THE rorRT TO THE JURY.

THE (M)URT: Oentlemen of the Jury: In the month of
May, 1910, the phiintiff was engaged as one of the workmen
in the construction of a tunnel, tlie excavation of a certain
space in a hillsi(h», at a point that has been described, in the
District of Alaska. While he was so engaged it appears that
he met with an injury, and the question which we are here to

THE KATALLA COMPANY 137

investigate is whether the facts and circumstances and the
causes leading* up to this occurrence were such that under the
law of the land he was entitled to recover comx^ensation for
those injuries from this defendant, The Katalla Company.

The plaintiff alleges as the foundation for his claim against
the defendant company that at that time while he was employed
as a laborer on the construction of a certain railroad in con-
nection with which this tunnel or excavation was being prose-
cuted, the railroad known as the Copper River & Northwestern
Railroad, near Copper River, Alaska, that the defendant com-
pany was engaged in that construction work in connection with
which he was employed. He further alleges that the defendant,
The Katalla Company, negligently and carelessly furnished
men working with the plaintiff and in his immediate neighbor-
hood dangerous, unsafe, defective and extra-hazardous dyna-
mite for use by them in blasting, in this, to-wit : That the
dynamite so furnished was more than two years old and by
reason thereof unsafe to use and liable to explode prematurely,
though handled ever so carefully; that the dynamite so fur-
nished by the defendant had further been exposed to the air,
wind, rain and sun, heat and cold before it was given to the
men for use, thereby rendering it extra dangerous, unsafe, easy
and liable to explode prematurely though handled carefully,
that the age of the dynamite and its extra dangerous condition
was well known to the defendant but unknown to the plaintiff';
that the dynamite had been exposed to the elements, and its
extra dangerous condition by reason thereof was well known
to the defendant but unknown to the plaintiff ; that the defend-
ant negligently and carelessly failed and neglected to inform the
plaintiff and the men using the dynamite of the extra danger-
ous condition of the same. He further alleges with more cir-
cumstance and detail the occurrences which gave rise, as he
contends, to the explosion and the injury which he received,
and he alleges that the defective condition of the dynamite was
the cause of the explosion and the consequent injury; that this
conduct on the part of the defendant company constituted negli-
gence and that he is entitled by reason of that negligence to
recover compensation.

The defendant denies all of the allegations of negligence;

138 JOHN p. JOHNSON VS.

denies that any of these matters occurred, except that it admits
that the plaintiff was laboring there and that he met with an
injury, but it denies that it was negligent in any respect and
denies that any of its acts caused the injury or the exj^losion.

It is not claimed by the plaintiff' that he was employed by
the defendant. It is claimed by him, however, that the relation
existing between the plaintiff and the defendant was such that
there was a duty owed to him in connection with the nature of
the dynamite to be supplied for this use. As to that I will
speak more definitely a little later.

Now, the basis of this action is negligence, and so it is im-
portant in the first place to understand the definition of negli-
gence. Negligence consists in doing something which under
the existing circumstances and conditions a person of ordinary
prudence would not have done or, on the other hand, omitting
to do something which under existing circumstances and con-
ditions a person of ordinary prudence and care would have
done. Now this is the legal definition of negligence. You can-
not add to that definition nor subtract from it, but it is for you
to take that definition and apply it to the facts and circum-
stances of each case and to say whether or not there was negli-
gence under that definition.

The opposite of negligence is ordinary care. If a person
exercises ordinary care, that is the degree of care that under
the circumstances is usually practiced by persons of ordinary
prudence, then there is no negligence.

It, of course, follows from this definition that what is or
is not negligence depends very largely upon the circumstances
— the surrounding conditions. What might be a very proper
degre(» of care under one set of circumstances would be negli-
gence under another set, and it is largely for that reason that
you are left to be the judges of whether or not there was any
negligence under the circumstances of each case.

Now the plaintiff contends, and there is evidence here tend-
ing to estal>lish these facts — whether they are established or
not is for you to say, you being entirely the judge of the facts
— but there is evidence tending to show that the railroad upon
which this construction work was going on was known as the
Co])per River & Northwestern Kailroad. That the company

THE KATALLA COMPANY 139

who owned the railroad, and owning it, made a geiieral con-
tract with the Katalla Company, the defendant in this case
for the prosecution of that work. That the Katalla Company
had made another general contract with M. J. Heney for the
doing of the work; that Heney let out station work, as it has
been called in the evidence, that is, certain rather small por-
tions of the work to different parties, and that the plaintiff
was employed by one of those parties to work upon this par-
ticular tunnel. Further, that the dynamite which was used in
the blasting in this particular tunnel came from the defendant,
the Katalla Company. Now, there is no evidence as to under
just what arrangement the Katalla Company issued this dyna-
mite which came into the possession of Heney and was carried
to this location — whether it was furnished because it was a part
of the contract that it should be furnished or Avhether it was
sold, we do not know — the evidence does not show. It is the
law, however, that if the owner of a railroad, engaged in con-
structing that railroad, lets out a general contract for the con-
struction of the road and knowing that that contract has been
let and that large numbers of men are to be employed or have
been employed in the actual work of construction, furnishes
an explosive to be used b}^ the individuals Avho are to actually
do the definite construction work, it is the duty of the owner of
the railroad furnishing that explosive under those circum-
stances, to exercise ordinary care to see that the explosive fur-
nished is not unnecessarily dangerous. That is, if the facts
are as contended for b}^ the plaintiff, along the lines that I have
just mentioned, it was the duty of the defendant company to act
with ordinary prudence to see that the dynamite which it fur-
nished and which was to be actuall}^ used in the blasting of
such excavations should not be defective so as to be extra haz-
ardous and unnecessarily dangerous. If the defendant com-
pany used ordinary care to that end, within the definition that
I have given to you, then it discharged its duty and no matter
how many accidents might occur from the use of the dynamite
there would be no liability.

Now, of course, the condition of the dynamite at the time
that it left the custody of the defendant company would be an
important question. If the dynamite at the time it left the

140 JOHN P. JOHNSON VS.

possession of the defendant — meaning the defendant's own
agents, and not meaning Heney and the other contractors and
sub-contractors — if when the dynamite left the possession of the
defendant company and its immediate emj^loyees who deliv-
ered possession of the d} namite to Heney or to the others —
if at that time it was in an ordinary condition, if it was free
from such defects that it was not of an extra hazardous and
unnecessarily dangerous character, then, of course, there would
be no liability. Further than that, even if it were at that time
in a defective and extra hazardous condition, unless that defec-
tive and extra hazardous condition was known to the defendant
company or its servants and agents acting for it, or by the ex-
ercise of ordinary care upon their part they should have known
that there was a defective condition which would have been
observed by them by using ordinary care, then there would be
no liability. In other words, it must appear that the dynamite
was defective and further that the defendant failed to exercise
ordinary care in putting forth this dynamite under the circum-
stances that existed. It might be that there might be defects
in an article of such a character that the exercise of ordinary
care would not discover them — if that was the situation, then
it would not be negligence to put them out.

Now, in order to recover the plaintiff must show b}^ the
preponderance of the evidence that the defendant was negli-
gent in the points to which I have already referred. It must
further appear by a preponderance of the evidence that that
negligence was the proximate cause of the injury to the plaintiff.

Now, there is a controversy in the case as to what was
the cause of the explosion. The defendant would not be liable
for the acts of the man who loaded the dvnamite into the hole
that has been described in the evidence. Neither would it be
resi)onsil)l(» for any of the acts of Heney or of his em])loyees,
and in order to find for the ])laintiff, in addition to the other
circumstances that I have referred to — the other points — you
must find tliat th(^ ex])losion was the proximate result — or to
state it dilTerently — you must find tliat the defect in the dyna-
mite was the proximate^ cause of the explosion and that the
(explosion was the cause of the injury to the plaintiff". If the
exjilosion was caused by some unusual formation in the hole

THE KATALLA COMPANY 141

or if it was caused by the negligence of the men who put the
dynamite into the hole, then the defendant would not be liable.

At the time of the accident mentioned in the complaint
M. J. Heney had a contract for the construction of the line
of railway, including the point at which the plaintiff was work-
ing. The work at this main point had been sub-let to certain
sub-contractors or stationmen, and the plaintiff was in the
employ of such stationmen. There is no evidence in this case
that the plaintiff' was in any manner employed by the Katalla
Company or that the Katalla Company owed him an}^ duty
by virtue of any employment or contract between the Katalla
Company and the plaintiff, or by virtue of any contract of the
company with M. J. Heney or the stationmen aforesaid, and
you will determine this case with this understanding of the
facts, namely ; that the Katalla Company had made no contract
with the plaintiff nor any person by whom the plaintiff was
employed which would render the defendant liable to the plain-
tiff by reason of such contract. This is not intended to qualify
what I have already said, that if there was a general contract
for the construction of the road and the defendant company,
having made that contract, had knowledge of it, then when it
furnished the dynamite to be used in the construction of the
road, it would be subject to the obligation to use ordinary care,
as I have already stated to you.

It was the duty of M. J. Heney and his sub-contractors in
furnishing explosives for use on the work to make reasonable
inquiry as to the condition of the explosives and reasonable
inspection to determine their safety, and the defendant in this
case cannot be held liable by reason of the failure of the said
contractor and sub-contractors to perform their duty in these
regards. If the Katalla Company furnished Heney with safe
explosives and the same afterwards so deteriorated as to be-
come dangerous, then the defendant is not liable for any dam-
age caused by any defect in the explosives.

The only charge of negligence against the defendant in this
case is that it furnished a dangerous and unsafe explosive and
failed to inform the plaintiff and his fellows of its dangerous
character and that the accident to plaintiff was caused by such
negligent acts. Before the plaintiff' is entitled to recover it

142 JOHN p. J0HN80X VS.

must appear to you from the evidence that the explosion in
question Avas caused by the defective character of the dynamite
employed. This fact you cannot find by mere guess or con-
jecture, but it must appear to you from the evidence. The
mere unexplained happening of a premature explosion is not
of itself sufficient to establish the defective character of the
dynamite einployed, but the evidence must go farther and show
that the explosion occurred because of some defect in the char-
acter of the dvnamite which is disclosed to vou bv the evidence.
If the accident may have happened from several different causes
for some of which the defendant is liable and for others it is
not, you are not to surmise and guess as to which cause might
have produced the result, as the defendant can in no event be
liable in this action except on account of the explosion occurring
through the particular negligence charged, and, as I have here-
tofore charged you, these facts must not be left to conjecture
but must be found from the evidence.

When I speak of a fact found from the evidence I mean
not only those things that are directly testified to and that you
believe a witness to state truthfulh, but I mean also such con-
clusions as reasonable men would draw from those facts. It is
the province of the jury to draw inferences from the facts that
have been proven in the case and if the inference is such that
a reasonable man would draw it in your judgment you are au-
tliorized to draw such an inference.

You are the sole judges of the facts and the evidence in the
case. You should consider and give weiglit to the testimony
of all the witnesses. But in weighing the evidence you are not
com]>elle(l or required to take the testimony of any witness
as the truth merelv because it lias been sworn to, but vou must
consider tluMr manner of testifying, their demeanor, their ap-
])arent interest, or lack of interest, in the case and all other
facts and circumstanc(»s ai)pearing on the trial, and give to the
testimony of (»ach witness such weight only as you deem it to
be entithnl to receive.

If you find for the phiintiff you will come to the (juestion
of damages. Now, in a case of this kind, the law does not un-
(IcTtake to hiy down any (h'finite mathematical rule for award-
ing damage's. It is to b(» borne in mind that the damages re-

THE K AT ALL A COMPANY 143

eoverable in such a case are limited to compensation for the
actual damages received, and the award of damages should be
compensation, and only compensation for such injuries. The
amount of an award is left largely to the good sense and sound
judgment of the jury. You have a right to take into considera-
tion the pain and suffering that the plaintiff has endured; any
financial loss from his lack of earning capacity that has oc-
curred, and if it appears from the evidence reasonably certain
that he will in future suffer pain or that he will suffer a lack
of earning capacity, you should take those facts also into con-
sideration in fixing the amount of your aAvard.

You are the judges of all the questions of fact in the case
and the weight of the evidence and the credibility of the wit-
nesses. You will pa}' no attention to the fact that the court
has denied a motion in the case or made other rulings on points
of law, so far as concerns your decision upon the facts. Such
evidence as has been admitted in the case and that only you
are to consider. You are responsible for a correct and rightful
decision of the case, as the judges of the facts.

The burden of proof is upon the plaintiff to establish the
allegations of his complaint by a preponderance of the evidence.
By a preponderance of the evidence is meant evidence that has
greater convincing force — great probability in your mind. In
passing u]>on these questions of fact you will pass upon them
without regard to any sympathy of prejudice — simply as the in-
vestigators of those questions. It is for you to say, regardless
of any feeling one way or the other as between these parties,
just what the facts were within the rules of law that I have
stated.

You will have two forms of verdict, which vou will readilv
understand. In order to agree upon a verdict, the concurrence
of the entire eleven composing your body is necessary.

Now, the court may not be in session when you agree upon a
verdict. If that is the case you may return a sealed verdict.
In that case, at the conclusion of your deliberations the fore-
man signs the verdict which you have agreed upon and puts
it in a sealed envelope, keeping it in his possession; you can
then separate, but you Avill be in your seats tomorrow morning

144 JOHN p. JOHNSON VS.

at ten o'clock, when the verdict will be opened and read. You
may now retire."

Be it further remembered that, at the time of giving said
instructions, defendant by its counsel then and there duly ex-
cepted to the following instruction given by the court, which ex-
ception Avas by the court allowed, to-wit :

"Now, there is no evidence as to under just what arrange-
ment the Katalla Company issued this dynamite which came
into the possession of Heney and was carried to this location,
whether it was furnished because it was a part of the contract
that it should be furnished or whether it was sold, we do not
know — the evidence does not show\ It is the laAv, however,
that if the owner of a railroad engaged in constructing that
railroad lets out a general contract for the construction of the
road and knowing that that contract has been let and that large
numbers of men are to be employed or have been employed in
the actual work of construction, furnishes an explosive to be
used by the individuals who are to actually do the definite con-
struction of the Avork, it is the duty of the owner of the rail-
road furnishing that explosive under those circumstances to ex-
ercise ordinary care to see that the explosive furnished is not
unnecessarily dangerous."

The court further instructed the jury as a modification of
defendant's requested instruction No. 1, as follows :

"This is not intended to (pialify what I liave already said,
that if there was a general contract for the construction of the
road and the defendant company liaving made that contract
Iiad knowh»(lg(» of it, tlien when it furnislied the dynamite to be
used in the construction of the road it would be subject to tlie
obligation to use ordinary care, as I have already stated to you."

To the giving of wliicli instruction, and to tlie modification
of its re(|iiest(»d instruction No. 1, the defendant by its counsi^
then and there duly exce[)ted, which exce])tion was by the court
allowed.

That defendant's re(niested instruction No. 1, before being
modified as last aforesaid, was as follows:

THE KATALLA COMPANY 145

''That at the time of the accident mentioned in the complaint
one M. J. Heney had a contract for the constr-uction of a cer-
tain line of railway, including the point at which the plaintiff
was working. The work at this named point had been sub-let
to certain sub-contractors or stationmen, and the plaintiff was
in the employ of such stationmen. There is no evidence in this
case that the plaintiff was in any manner employed by the
Katalla Company, or that the Katalla Company owed him any
duty by virtue of any employment or contract l)etween said
company and the plaintiff, or by virtue of any contract of the
ccmipany with M. J. Heney or the stationmen aforesaid, and you
will determine this case with this understanding of the facts,
viz : that the Katalla Company has made no contract with the
jdaintiff or any person b}^ whom the plaintiff was employed
which Avould render the defendant liable to the plaintiff by
reason of such contract."

That the defendant duly requested the court in writing to
give its requested instruction No. 2 as follows :

"I charge you that it was the duty of M. J. Heney and his
sub-contractors in furnishing explosives for use on the work
to make a reasonable inquiry as to the condition of the explo-
sives and a reasonable inspection to determine their safety,
and that the defendant in this case cannot be held liable by
reason of the failure of said contractor and sub-contractors
to perform their duty in these regards. If the Katalla Com-
pany furnished Heney Avith safe explosives and the same after-
wards so deteriorated as to become dangerous then the defend-
ant is not liable for any damage caused by any defect in the ex-
plosive; and if the Katalla Conqjany furnished unsafe explo-
sives to said contractor and the contractor knew the unsafe
character of such explosive, or by reasonable inspection could
have deternnned its character and with such knowledge or op-
portunity of knowledge said c(mtractor purchased from the
Katalla Company such explosives, and an accident occurred in
the use of the same, then the Katalla Company would not be
liable, but the direct and proximate cause of such an accident
would be the act of the contractor in using or furnishing for
use such unsafe explosive."

146 JOHN p. JOHNSON VS.

And which instruction the court refused to give as re-
quested, but modified the same by striking therefrom the fol-
lowing portion : ^^\nd if the Katalla Company furnished un-
safe explosives to said contractor and the contractor knew
the unsafe character of such explosive or by reasonable inspec-
tion could have determined its character and with such knowl-
edge or opportunity of knoAvledge said contractor purchased
from the Katalla Company such explosives and an accident
occurred in the use of the same, then the Katalla Company
would not be liable, but the direct and proximate cause of
such an accident would be the act of the contractor in using
or furnishing for use such unsafe explosive," and to which
refusal to give said last mentioned portion of said instruction
the defendant by its counsel then and there duly excepted,
which exception was by the court allowed.

Be it further remembered that thereafter defendant duly
and regularly filed its petition for new trial, which petition
was by the court denied and overruled upon condition that
the plaintiff remit all of the verdict and judgment in excess
of five thousand seven hundred dollars, and the plaintiff there-
after duly in writing consented that the verdict of the jury
be reduced to the sum of five thousand seven hundred dollars,
and judgment was thereupon rendered in favor of the plaintiff
and against the defendant for the said sum of five thousand
seven liundnMl dollars. To the order of the court overruling
and denying defendant's petiticm for a new trial, the defendant
by its counsel excepted, and such exception was allowed.

Service of witliin and foregoing lUll of Exceptions acknowl-
edged, and copy received this 18th day of April, 11)12.

MARTIN J. LINI),
Attorney for IMaintiff.

THE K AT ALL A COMPANY

147

In the United States District Courts Western District of Wash-
ington, Northern Division.

JOHN P. JOHNSON,

Plaintiff',

vs.

> No. 1940.

THE KATALLA COMPANY,

Defendant.

CERTIFICATE TO BILL OF EXCEPTIONS.

I, C. H. HAN FORD, Judge of the above entitled court, do
hereby CERTIFY that the above and foregoing bill of excep-
tions in the above entitled cause, is a true bill of exceptions,
and the same has been approved, allowed and settled, and
ordered filed and made a part of the record of said cause.

Done in open court this 16th day of May, 1912.

C. H. HANFORD, Judge.

Indorsed : Bill of Exceptions. Filed in the U. S. District
Court, Western Dist. of Washington, May 16, 1912. A. W,
Engle, Clerk. By S., Deputy.

148 JOHN p. JOHNSON VS.

In the United States District Courts Western District of Wash-
ington, Northern Division.

JOHN P. JOHNSON, ^

Plaintiff,

vs.

> No. 1940.

THE KATALLA COMPANY,

Defenda nt.

ORDEK ALLOWING, SETTLING AND CERTIFYING BILL

OF EXCEPTIONS.

It appearing to the Conrt that the defendant has prepared
and duly served upon the attorneys for the plaintiff herein,
within due time, a proposed bill of exceptions, and the plaintiff,
within ten days thereafter, having served the defendant with
proposed amendments to the proposed bill, and said proposed
bill of exceptions and proposed amendments thereto, within five
days thereafter, having been delivered to the Clerk of the above
entitled Court for the Judge thereof, and the said Clerk having
delivered said proposed bill and amendments to the said Judge,
and the Judge of said Court having duly designated Monday,
the 6th day of May, 1912, as the time at which he would settle
the bill of exceptions, and the said Clerk of said Court having at
once notified and informed both parties of the time for settling
the bill of exceptions as designated by the Judge, and the said
matter coming regularly on for hearing for the purpose of set-
tling the said bill of exceptions on the said 6th day of ^lay, 1912,

It was tliereui)on, and is hereby ordered that the ])r()posed
amendiiK^nts to said ])ro])os(Hl bill of exceptions be allowed, and
that with the addition of said pro])osed amendments to said
j)rop()S(»d bill, the same shall be and is hereby settled and allowed
as a bill of (»xce])tions Ikmmmu, and the same shall be engrossed
by th(» defendant and ])rcscnt(Ml to the Judge of this Court for
his certificate.

THE KATALLA COMPANY 149

And it further appearing to the Court that said proposed
bill of exceptions with the proposed amendments have been en-
grossed, and that said bill of exceptions so engrossed conforms
to the truth and is in proper form, it is therefore ordered that
the said bill is a true bill of exceptions, and the same is hereby
approved, allowed and settled, and ordered filed and made a
part of the record of said cause.

Done in open court this 16th day of May, 1912.

C. H. HANFORD, Judge.

Indorsed: Order Allowing, Settling and Certifying Bill of
Exceptions. Filed in the U. S. District Court, Western Dist.
of Washington, May 16, 1912. A. W. Engle, Clerk. By S.,
Deputy.

150

JOHN P. JOHNSON VS.

In the United States District CouH for the Western District of
Washington. Northern Division.

JOHN P. JOHNSON,

Plaintiff,

vs.

> No. 1940.

THE KATALLA COMPANY,

Defendant. ^

ASSIGNMENT OF ERRORS.

Comes now the Katalla Company, the defendant above
named, in connection with its petition for a writ of error, and
makes the following assignment of errors, and particularly
specifies the following as the errors upon which it will rely and
which it will urge upon the prosecution of its said writ of error
in the above entitled cause, and which it avers occurred upon
the trial of said case, to-wit :

I.

The Court erred in rendering judgment in favor of the plain-
tiff and against the defendant.

II.

The Court erred in overruling and denying the defendant's
challenge to the sufficiency of the evidence to sustain a verdict
in favor of the plaintiff, and in overruling and denying defend-
ant's motion to direct a verdict of the jury in favor of the de-
fendant.

III.

The Court erred in overruling and denying defendant's
motion for a new trial.

IV.

The Court erred in ])ermitting ])laintiff's witness, I. F.
LauckH, to testify in answer to the following question :

THE KATALLA COMPANY 151

"Q Assume as a fact that some men are working in the
tunnel on railroad construction, and a box of dynamite is
brought into the tunnel with the sticks to be used in loading the
hole, and two men are loading it, one man is cutting open the
wrappers and the other is shoving the powder down into the hole
with the loading stick consisting of wood in the ordinary man-
ner of loading dynamite, and while in the act of doing so an
explosion is caused by the dynamite in the hole, the dynamite
that is used in loading it being more than two years old, that
the wrappers are moist, with an oily moisture, discolored ; what
would you say was the cause of that explosion?"

V.

The Court erred in giving the following instruction to the
jury :

"Now, there is no evidence as to under just what arrange-
ment the Katalla Company issued this dynamite which came
into the possession of Heney and Avas carried to this location,
whether it was furnished because it was a part of the contract
that it should be furnished or whether it was sold, we do not
know — the evidence does not show. It is the law, however, that
if the owner of a railroad engaged in constructing that railroad
lets out a general contract for the construction of the road and
knowing that that contract has been let and that large numbers
of men are to be employed or have been employed in the actual
work of construction, furnishes an explosive to be used by the
individuals who are to actually do the definite construction of
the work, it is the duty of the owner of the railroad furnishing
that explosive under those circumstances to exercise ordinary
care to see that the explosive furnished is not unnecessarily
dangerous."

VI.

The Court erred in modifying defendant's requested instruc-
tion No. 1, by giving the following additional instruction :

"This is not intended to qualify what I have already said,
that if there was a general contract for the construction of the
road and the defendant company having made that contract

152 JOHN p. JOHNSON VS.

had knowledge of it, then when it furnished the dynamite to be
used in the construction of the road it would be subject to the
obligation to use ordinary care, as I have already stated to you."

VII.

The Court erred in failing and refusing to give that part of
defendant's requested instruction No. 2, which reads as follows :

"And if the Katalla Company furnished unsafe explosives
to said contractor and the contractor knew the unsafe character
of such explosive or by reasonable inspection could have deter-
mined its character and with such knowledge or opportunity
of knowledge said contractor purchased from the Katalla Com-
pany such explosives and an accident occurred in the use of the
same, then the Katalla Company would not be liable, but the
direct and proximate cause of such an accident would be the
act of the contractor in using or furnishing for use such unsafe
explosive."

Wherefore, said The Katalla Company, plaintiff in error,
prays that said judgment of the District Court of the United
States for the Western District of W^ashington, Northern Divi-
sion, be reversed, and that said Court be instructed to grant a
new trial of said cause.

BOGLE, GRAVES, MERRITT & BOGLE,

Attorneys for Defendant.

Indorsed : Assignment of Errors. Filed in the L". S. Dis-
trict Court, Western Dist. of Washington, May 20, 1912. A. W.
Engle, Clerk. By S., Deputy.

THE KATALLA COMPANY 153

In the United States District Court for the Western District of
Washington. Northern Division.

^

^ No. 1940.

JOHN P. JOHNSON,

Plaintiffs

vs.

THE KATALLA COMPANY, a Cor-
poration,

Defendant.

PETITION FOR WRIT OF ERROR.

Comes now the Katalla Company, a corporation, the de-
fendant herein, and complains and states that on the 12th day
of March, 1912, the above entitled court entered judgment
herein in favor of the plaintiff above named, and against the
defendant above named, in which judgment, and in the pro-
ceedings had prior thereto in the above entitled cause, certain
errors were committed to the prejudice of this defendant, all
of which will appear in detail from the Assignment of Errors
which is filed with this petition.

Wherefore, this defendant prays that a writ of error issue
in its behalf out of the United States Circuit Court of Appeals
for the Ninth Circuit, for the correction of the errors so com-
jjlained of, and that a transcript of the record and proceedings,
with all things concerning the same, duly authenticated, be sent
to the United States Circuit Court of x\ppeals for the Ninth
Circuit.

And defendant further prays for an order fixing the amount
of bond for a supersedeas in said cause.

Dated this 17th day of ^lay, A. D. 1912.

BOGLE, GRAVES, MERRITT & BOGLE,

Attorneys for Defendant.

Indorsed: Petition for Writ of Error. Filed in the U. S.
District Court, Western Dist. of Washington, May 20, 1912.
A. W. Engle, Clerk. By S., Deputy.

154 JOHN p. JOHNSON VS.

In the United States District Court for the Western District of
Washington. Northern Division.

JOHN P. JOHNSON,

Plaintiffs

^^' y No. 1940.

THE KATALLA COMPANY,

Defendant. ^

ORDER ALLOWING WRIT OF ERROR.

On this day came the defendant, the Katalla Company, a
corporation, by its attorneys, and filed herein and presented to
the Court its petition praying for the allowance of a Writ of
Error, and an assignment of errors to be urged by it, pra} ing
also that a transcript of the record and proceedings in said
cause, with all things concerning the same, be sent to the United
States Circuit Court of Appeals for the Ninth Circuit, and that
the amount of bond for supersedeas in said cause be fixed. On
consideration whereof, the Court does hereby allow a Writ of
Error as prayed for.

IT IS FURTHER ORDERED that a bond in the sum of
Twelve Thousand Dollars (|12,000.00), conditioned accordingf
to law, be executed in behalf of the above named defendant,
with good and sufficient surety, to be approved by the under-
signed judge, and that upon said bond being executed, approved
and filed, said judgments in this cause shall forthAvith be super-
seded, and all proceedings in this cause stayed until a final de-
termination of said W>it of Error by the United States Circuit
Court of Appeals for the Ninth Circuit.

Dated this 20th day of May, A. D., 1912.

C. H. HANFORD,
District Judge of the United States for the Western District of
Washington.

Indorsed : Onh'r Alh)\ving Writ of Error. Fih^d in the U.
S. District (^.ourt, Western Dist. of Washingtcm, May 20, 1912.
A. W. Engh', Clerk. J^y S., De])uty.

THE KATALLA COMPANY 155

In the District Court of the United States for the Western
District of Washington. Northern Division.

JOHN P. JOHNSON,

Plaintiffs
vs.

>

No. 1940.

THE KATALLA COMPANY, a Cor-
poration,

Defendant.

BOND ON WRIT OF ERROR.

KNOW ALL MEN BY THESE PRESENTS, That we, the
Katalla Company, a corporation, defendant in the above entitled
cause of action, as principal, and the American Surety Com-
pany, a corporation, duly organized and existing under and by
virtue of the laws of the State of New York, and duly authorized
and empowered to become surety upon bonds and to transact
business as a surety company in the State of Washington, as
surety, are held and firmly bound unto John P. Johnson, plain-
tiff above named, in the sum of Twelve Thousand Dollars
($12,000.00), lawful money of the United States, to be paid to
the said plaintiff, his heirs, executors, administrators and as-
signs, for which payment, well and truly to be made, we do
hereby bind ourselves, our and each of our successors and as-
signs, jointly and severally, firmly by these presents.

Sealed with our seals and dated at Seattle, Washington, this
20th day of May, A. D. 1912.

Whereas, lately, at a District Court of the United States for
the Western District of Washington, Northern Division, in a
suit pending in said Court, between John P. Johnson, plaintiff,
and Katalla Company, a corporation, defendant, a judgment
was rendered in favor of said plaintiff and against said de-
fendant in the sum of five thousand seven hundred dollars
(15,700.00) and costs, and the said Katalla Company, defend-
ant, having obtained a Writ of Error and filed a copy thereof in

156 JOHN p. JOHNSON VS.

the office of the Clerk of said Court, to reverse the judgment in
the aforesaid action, and having obtained a citation directed to
the above named phiintiff, citing and admonishing them to be
and appear at a session of the United States Circuit Court of
Appeals for the Ninth Circuit, to be holden at the City of San
Francisco, State of California, in said Circuit.

Now, therefore, the condition of the above obligation is such,
that if the said Katalla Company shall prosecute its Writ of
Error to effect and shall answer all costs and damages that may
be awarded against it, including all just damages for delay and
costs and interest on the appeal, if it shall fail to make its plea
good, then the above obligation to be void ; otherwise to remain
in full force, virtue and effect.

It is hereby expressly agreed by said surety that in case of a
breach of any condition hereof, the above named District Court
of the United States for the Western District of Washington,
Northern Division, may, upon notice to said surety of not less
than ten days, proceed summarily in the above entitled action to
ascertain the amount which said surety is bound to pay on
account of such breach, and render judgment therefor against
said surety, and award execution therefor.

KATALLA COMPANY,
By Bogle, Graves, Merritt & Bogle, its Attorneys.
AMERICAN SURETY COMPANY OF NEW YORK,

By H. H. A. Hastings, Resident Vice-President.
Attest: S. H. Melrose,

(Seal) Resident Assistant Secy.

The foregoing bond is hereby approved as a bond on a Writ
of Error and Supersedeas Bond, this 20th day of May, A. D.,

- C. H. HANFORD,

Judg(» of the District Court of the United States for the Western
District of Washington.

Indorsed : I?ond on Writ of Error. Filed in the U. S. Dis-
trict Court, Western Dist. of Washington, May 20, 1912. A. W.
Engle, Clerk. By S., Deputy.

THE KATALLA COMPANY 157

In the United States District Court for the ^Vestern District of
Washi/ngtou. Northern Division.

JOHN P. JOHNSON, ^

Plairit'iffy

vs.

y No. 1940.

THE KATALLA COMPANY,

Defendant. ^

ACKNOWLEDGMENT OF SERVICE OF PAPERS ON

WRIT OF ERROR.

Service of the Petition for Writ of Error, of the Assignment
of Errors, of the Bond on Writ of Error, of the Citation on
Writ of Error, and of Writ of Error in the above entitled cause,
filed in the above entitled Court on the 2Gth day of May, 1912,
i« hereby acknowledged, and receipt of true copies thereof on
this 20th day of May, 1912, is also acknowledged.

MARTIN J. LUND,
Attorney for Defendant in Error.

Indorsed : Acknowledgment of Service of Papers on Writ
of Error. Filed in the U. S. District Court, Western Dist. of
Washington, May 20, 1912. A. W. Engle, Clerk. By S., Deputy.

158 JOHN p. JOHNSON VS.

In the United States Distriet CouH for the Western District of
Washington. Northern Division,

JOHN P. JOHNSON,

Defendant in Error.
vs.

V No. 1940.

THE KATALLA COMPANY,

Plaintiff in Error.

PRAECIPE FOR TRANSCRIPT OF RECORD.

To the Clerk of the above entitled Court:

You will please prepare, certify and transmit forthwith to
the United States Circuit Court of Appeals for the Ninth
Judicial Circuit, at San Francisco, California, as the record on
writ of error to the District Court of the United States for the
Western District of Washington, Northern Division, a complete
transcript of the following files, record and proceedings in the
above entitled cause, to-wit:

Complaint.

Answer.

Reply.

Verdict.

Petition for New Trial.

Order extending time for filing Bill of Exceptions, filed Feb-
ruary 19, 1912.

Memorandum Decision and Order on Motion for new trial,
filed February 29, 1912.

Order Denying Petition for New Trial, filed March 12, 1912.

Written Consent of Plaintiff to Reduction of Verdict, filed
March 12, 1912.

Judgment, filed March 12, 1912.

Order extending time for filing P»ill of Exceptions, filed
March 2(), 1912.

Onh^r extending tlie time for filing Bill of Exceptions, filed
April 8, 1912.

THE KA.TALLA COMPANY 159

Bill of Exceptions and Certificate, filed May 16, 1912.
Order allowing and settling Bill of Exceptions, filed May
16, 1912.

Assignment of Errors.

Petition for Writ of Error.

Order allowing Writ of P]rror.

Bond on Writ of Error.

Writ of Error, and copy thereof.

Citation, and copy thereof.

Acceptance of Service of Papers on Writ of Error.

This Praecipe.

Dated May 20, 1912.

BOGLE, GRAVES, MERRITT & BOGLE,

Attorneys for Plaintiff in Error.

Indorsed : Praecipe for Transcript of Record. Filed in the
U. S. District Court, Western Dist. of Washington, May 20,
1912. A. W. Engle, Clerk. By S., Deputy.

160 JOHN P. JOHNSON VS.

In the District Court of the Inited iStates for the Western
District of Washington. Northern Division.

JOHN P. JOHNSON,

Plaintiff',
vs.

> No. 1940.

THE KATALLA COMPANY, a Cor-
poration,

Defendant.

CLERKS CERTIFICATE TO TRANSCRIPT OF RECORD.

United States of America,

Western District of Washington. — ss.

I, A. W. Engle, Clerk of the District Court of the United
States for the Western District of Washington, do herebv certifv
the foregoing one hundred and sixtv-four printed pages num-
bered from 1 to 164, inclusive, to be a full, true and correct copy
of the record and proceedings in the above and foregoing entitled
cause as is called for by the Praecipe of the Attorneys for De-
fendant and Plaintiff in Error as the same remain of record and
on file in the office of the Clerk of the said Court, and that the
same constitutes and return to the Writ of Error received and
filed in the office of the Clerk of the said District Court on
May 20, 1912.

I further certify that I annex hereto and herewith transmit
the original Writ of Error and Citation in said cause.

I further certify that the cost of pre])aring and certifying
the foregoing return to Writ of Error is the sum of one hundred,
ninety-four dollars, and fifteen cents (1194.15) and that the
said sum lias been paid to me by Messrs. Bogle, Oraves, Merritt
& Bogle, of c(mnsel for Defc^ulant and Plaintiff in Error.

In testimcmv whereof, I hav(» hereunto set mv hand and
affixed the seal of said District (^ourt, at Seattle, in said Dis-
trict, this 10th day of July, 1912.

(Seal) A. W. ENGLE, Clerk.

THE KATALLA COMPANY 161

In the United States District Court for the Western District of
Washington. Northern Division.

JOHN P. JOHNSON,

Plaintiffs
VS.

> No. 1940.

THE KATALLA COMPANY,

Defendant.

WKIT OF ERROR.

UNITED STATES OF AMERICA.

The President of the United States of America, to the Honor-
able, the Judges of the District Court of the United States^
for the Western District of Washington^ Northern Division.
Greeting :

Because in the record and proceedingKS, as also in the rendi-
tion of the judgment upon a verdict, which is in the said Dis-
trict Court before you, or some of you, between John P. John-
son, the original plaintiff, and the defendant in error, and the
Katalla Company, the original defendant and the plaintiff in
error, manifest error hath happened to the damage of said the
Katalla Comimny, plaintiff in error, as by its answer appears,
we being willing that error, if any hath been, should be duly
corrected and full and speedy justice done to the parties afore-
said in this behalf, do command you, if judgment be tlierein
given, that then, under your seal, distinctly and openly, you send
the record and proceedings aforesaid with all things concerning
the same, to the United States Circuit Court of Appeals for the
Ninth Circuit, together with this Avrit, so that you have the
same in San Francisco, in said Circuit, on tlie 20th day of June
next; and that the record and proceedings aforesaid being in-
spected, the said Circuit Court of Appeals may cause further

162 JOHN p. JOHNSON VS.

to be done therein to correct that error, which of right and ac-
cording to law and custom of the United States ought to be done.
Witness the Honorable Edward Douglas White, Chief Jus-
tice of the United States, the 20th day of May, in the year of
our Lord, One Tliousand Nine Hundred and Twelve.

(Seal) A. W. ENGLE,

Clerk of the District Court of the United States for the Western

District of Washington. Northern Division.
By F. A. SIMPKINS, Deputy.

(Seal)

Allowed by : C. H. HANFORD,

District Judge of the United States, Presiding in the District
Court of the United States, for the Western District of
Washington. Northern Division.

Received this 20th day of May, 1912, a true copy of the fore-
going writ of error for the defendant in error.

A. W. ENGLE,
Clerk of the District Court of the United States for the Western

District of Washington. Northern Division.
By F. A. SIMPKINS, Deputy.

Indorsed : No. 1940. Original. In the District Court of the
United States, Western District of Washington, Northern Divi-
sion. John P. Johnson, Plaintiff, vs. the Katalla Company, a
corporation, Defendant. Writ of Error. Filed in the U. S.
District Court, Western Dist. of Washington, May 20, 1912.
A. W. Engle, Clerk. By S., Deputy. Bogle, Graves, Merritt &
Bogle, 610-016 Central Building, Seattle, Washington, Attor-
neys for Defendant.

THE KATALLA COMPANY 163

In the United States District Court for the Western District of
Washington. Northern Division.

JOHN P. JOHNSON,

Plaintiffs

vs.

y No. 1940.

THE KATALLA COMPANY,

Defendant.

CITATION.

UNITED STATES OF AMERICA.

The President of the United States to John P. Johnson,
Greeting :

You are cited and admonished to be and appear in the United
States Circuit Court of Appeals for the Ninth Circuit at the
Court room of said Court in the Citv of San Francisco, in the
State of California, within thirty (30) days after the date of
this citation, pursuant to writ of error filed in the Clerk's office
of the District Court of the United States for the Western Dis-
trict of Washington, Northern Division, wherein the Katalla
Company is plaintiff in error, and you are defendant in error, to
show cause, if any there be, why the judgment in said writ of
error mentioned should not be corrected and speedy justice not
be done to the parties in that behalf.

Witness the Honorable Edward Douglas White, Chief Jus-
tice of the Supreme Court of the United States, the 20th day of
May, in the year of our Lord, One Thousand Nine Hundred and
Twelve.

C. H. HANFORD,
Judge of the District Court of the United States, Presiding in

the District Court of the United States for the Western

District of Washington, Northern Division.

164 JOHN p. JOHNSON VS.

Copy of the Avithin Citation received and service acknowl-
edged this 20th day of May, 1912.

MARTIN J. LUND,
Attornev for Defendant in Error.

Indorsed : No. 1910. Original. In the District Court of the
United States, Western District of Washington, Northern Divi-
sion. John P. Johnson, Plaintiff, vs. the Katalla Company,
Defendant. Citation. Filed in the U. S. District Court, West-
ern District of Washington, May 20, 1912. A. W. Engle, Clerk.
By S., Deputy. Bogle, Graves, Merritt & Bogle, 610-616 Central
Building, Seattle, Washington, Attorneys for Defendant.

IN THE

Qltrnttt (Hottrt of KnpmlB

FOR THE NINTH CIRCUIT

THE KATALLA COMPANY, a cor-
poration,

Plaintiff in Error! o | /r Q

JOHN P. JOHNSON,

Defendant in Error,

Error to the United States District Court for the

Western District of Washington,

Northern Division,

Brief of Plaintiff m Error

W. H. BOGLE,
CARROLL B. GRAVES,
F. T. MERRITT,
LAWRENCE BOGLE,

Attorneys for Plaintiff in Error,
Seattle, Washington.

The Ivy Press, Third and Cherry, Seattle

"■' '■%

IN THE

(Hxvmxt (Hmxt nf KppmU

FOR THE NINTH CIRCUIT

THE KATALLA COMPANY, a cor-
poration,

Plaintiff in Error I

vs. ) No..

JOHN P. JOHNSON,

Defendant in Error.

Error to the United States District Court for the

Western District of Washington,

Northern Division.

Brief of Plaintiff in E

rror

W. H. BOGLE,
CARROLL B. GRAVES,
F. T. MERRITT,
LAWRENCE BOGLE,

Attorneys for Plaintiff in Error.

Seattle, Washington.

In the
United States Circuit Court of Appeals

FOR THE NINTH CIRCUIT

THE KATALLA COMPANY, a cor-
poration,

Plaintiff in Error 1

vs, ) No..

JOHN P, JOHNSON,

Defendant in Error.

Error to the United States District Court for the

Western District of Washington,

Northern Division.

Brief of Plaintiff m Error

STATEMENT.

I.

This was an action at law to recover damages
on account of personal injuries sustained by the
plaintiff, John P. Johnson, and alleged to have been
caused by the negligence of the defendant. The
Katalla Company, Defendant's motion for a di-
rected verdict was denied. Judgment was rendered

in favor of plaintiff upon the verdict of a jury.
Petition for a new trial was denied, upon the plain-
tiff consenting to a reduction in the amount of the
verdict.

The complaint, in substance, charges that the
Katalla Company was engaged in the construction
of a railroad in Alaska, and Johnson was employed
as a laborer thereon; that the company furnished
the men working with Johnson unsafe, defective
and extra-hazardous d^Tiamite for use in blasting:,
and that such dynamite was defective because of
its age and exposure to the elements, and by reason
thereof liable to explode prematurely, though care-
fully handled; that, while the dynamite was being
used by the men mentioned, it exploded prematurely
by reason of its extra-dangerous and unsafe condi-
tion, and Johnson received his injuries.

The answer, by denials, placed in issue the facts
alleged. No question arises here upon any other
fact pleaded.

In order to fix liability upon the plaintiff in
error and hold the judgment rendered, defendaut
in error must maintain four propositions:

1. That the Katalla Company furnished the dyna-
mite to the men working with Johnson, and,

,5

if it was defective, violated some duty it owed
to Johnson.

2. That the act of the Company in selling the dyna-

mite to the contractor and builder of the rail-
road was the proximate and efficient cause of
the injury to Johnson.

3. That the dynamite was in a defective or extra-

hazardous condition when it left the posession
of the Company.

4. That the injury was occasioned by the premature

explosion of such defective dynamite, and that
the same was so defective as to cause the pre-
mature explosion, and that such defective char-
acter was created by the age of the explosive
and its exposure to the elements.

These four propositions, together with the
errors assigned as occurring during the progress
of the cause, and presently noted, are the matters
to be reviewed upon the instant writ of error.

II.

In the year 1910, one M. J. Heney, as an inde-
pendent and general contractor, was engaged in
the construction of a railroad for the Katalla Com-
pany, plaintiff in error. This railroad was being

6

constructed from Cordova, Alaska, into the interior
of Alaska, and at '^Mile 123" certain tunnel work
was being carried on. Under his system of per-
forming his contract, Heney sublet certain portions
of the work to sub-contractors or station men, and
the sub-contractors employed the labor. One Sam
Rollin and associates were the sub-contractors en-
gaged in driving the tunnel at ^^Mile 123," and the
defendant in error, John P. Johnson, and others,
were employed there as laborers by the sub-con-
tractors. Heney purchased the dynamite or explo-
sive used on the work from the Katalla Company,
and then furnished the same to the sub-contractors,
and they stored it, and supplied it on their work
from time to time, as needed.

On May 26, 1910, while Johnson was engaged
in drilling in the tunnel at '^Mile 123," certain of
the sub-contractors there were loading dynamite
into a hole, and while so engaged an explosion oc-
curred, and Johnson received the injuries of which
he complains. This tunnel had been commenced in
January, and explosives had been sent out there by
Heney during the months of February, March and
April, 1910, and had been used in all the work upon
tliis tunnel without disclosing any unusual, danger-
ous or defective character of the explosive. During

the loading of the hole, the box of explosive was set
in front of the hole, and certain sticks of dynamite
were placed in the hole, and while they were being
rammed into position, the explosion occurred. The
box of dynamite sitting in front of the hole was
blown and scattered by the force of the explosion
over the rocks throughout the tunnel, but none of
the dynamite subjected to this unusual force and
jar was exploded or discharged. The sole explosion
was in the hole into which the sub-contractors were
ramming sticks of dynamite from which the wrap-
pings had been cut and removed. It will be noted
that the Company was not furnishing explosive to
the men employed with Johnson, as alleged in the
complaint, and that it occupied no contractual re-
lation or otherwise with Johnson, and that if liable
at all it is for the selling of an extra-dangerous ex-
plosive, knowing the increased dangers of its use
and not disclosing such danger to the purchaser, the
purchaser being ignorant of its true character.

It is also worthy of note that there is no evi-
dence showing, or from which it can be inferred,
that the dynamite when sold by the Katalla Com-
pany to Heney was in any respect dangerous or
defective, or that the Katalla Company failed in
any regard to properly inspect the explosive, or

8

shoTving in what manner the explosive was treated
and cared for while in the possession of Heney and
the sub-contractors, or when the particular dyna-
mite which exploded was furnished by the Katalla
Company ; and there vras no evidence that the dyna-
mite being used at the time of the accident was de-
fective or extra-hazardous, nor were there anv facts
proven from which such a fact could be inferred,
Unless inferred from the single incident of the explo-
sion occurring, and that inference is negatived and
overthrown by the circiunstance that none of the
dynamite exploded when blown about the tunnel, and
that the explosion itself occurred in a rock hole
into which sticks of dynamite were being rammed.
There was testimony that the wrappers on the dy-
namite used on the day of the accident showed, at
that time, evidence of being bleached and moist and
of having been exposed to the elements, but the
record is silent as to whether this condition existed
at the time the dynamite left the possession of the
Katalla Company. If speculation and r-onjeciure
are to be resorted to, notice may be taken of the
climatic conditions of southwestern Alaska during
the winter and spring months, in which season
Heney and his sub-contractors were hauling and
holding the dynamite on the work, and the liability
to exposure under such conditions.

III.

The questions involved, and which are pre-
sented here by the assignments of error, are as
follows :

1. The evidence was not sufficient to entitle de-

fendant in error to recover, and the motion of
plaintiff in error, made at the close of the evi-
dence, to direct a verdict in its favor, should
have been granted.

2. The evidence was insufficient to justify a ver-

dict in favor of defendant in error, and the pe-
tition for a new trial should have been granted.

3. Exceptions were taken to the giving and refusal

to give certain instructions to the jury, which
instructions are hereinafter particularly set
forth, and the rulings thereon assigned as erro]\

10

SPECIFICATIOXS OF ERROR RELIED

UPON.

I.

The court erred in denying the motion of plain-
tiff in error for a directed verdict, and in denying
the petition for a new trial, for the reason that the
evidence was insufficient to sustain or justify a
verdict against it, in the following particulars:

1. That the negligence charged against the de-
fendant was not shown by the evidence.

2. There was no evidence that the exj)losive
which was discharged to the injury of plaintiff was
defective or extra hazardous, or was more danger-
ous to handle than like explosives of the usual com-
position and of high explosive nature.

3. That there was no evidence that the explo-
sion was caused by reason of anv defective or extra
dangerous condition of said explosive, but the evi
dence affirmatively showed that the quality of tht-
explosive was such that it would not discharge pre-
maturely, or from slight jars or rough handling.

4. The evidence did not disclose the cause of
the explosion at the time the plaintiff received his
injuries, and there was no evidence of facts from

11

which the jury could draw any inference as to the
cause of the explosion, and the finding of the jury
was based on mere conjecture and guess.

5. There was no evidence that the explosive was
extra dangerous or defective when it was furnished
by the defendant, and no evidence was offered re-
garding its character and condition when it left the
possession of defendant, and there was no evidence
tending to show that the defendant did not exercise
the care in furnishing the explosive to M. J. Heney
required by the instructions of the court.

6. The verdict was against the law and the
evidence, in this, that the court charged the jury
that the only duty of the defendant was to use
ordinary care to see that the explosive sold by it
was not extra hazardous or unnecessarily dangerous,
and there was no evidence to show, or that tended to
show, any such lack or care.

7. There was no evidence that any contractual,
or other, relation existed between the plaintiff and
the defendant which imposed upon the defendant
any greater duty than to observe the same degree
of ordinary care that one person should observe for
the safety of every other person, and there is no
evidence of any failure on the part of defendant
to observe such ordinarv care.

12

8. The evidence failed to show the terms of the
contract bet^Yeen the defendant and M. J. Heney
under which the explosive was purchased, and that
it appears that Heney and his agent had as full
opportunity of knowing the character and condition
of such explosive as defendant had, and the evi-
dence wholly fails to show that Heney and his
agents did not receive and undertake the use of
such explosive with full knowledge of its character
and condition, if such explosive was in any respect
defective at the time it was delivered by the de-
fendant.

9. The evidence fails to show that the act of
defendant in selling the explosive to Heney was
the direct and proximate cause of the injury to
plaintiff, because, if the explosive was defective, it
appears that Heney, his agents and sub-contractors,
with full opportunity to inspect and know the
character of such explosive, voluntarily assumed to
use said explosive and exposed the plaintiff to
danger, and such act was the direct and proximate
cause of the injury to plaintiff.

II.

The court erred in giving the following instruc-
tion to the jury:

13

li

Now, there is no evidence as to under just
what arrangement the Katalla Company issued this
dynamite which came into the possession of Heney
and was carried to this location, whether it was fur-
nished because it was a part of the contract that it
should be furnished or whether it was sold, we do
not know — the evidence does not show. It is the
law, however, that if the owner of a railroad en-
gaged in constructing that railroad lets out a gen-
eral contract for the construction of the road and
knowing that that contract has been let and that
large nmnbers of men are to be employed or have
been employed in the actual work of construction,
furnishes an explosive to be used by the individuals
who are to actually do the definite construction of
the work, it is the duty of the owner of the railroad
furnishing that explosive under those circumstances
to exercise ordinary care to see that the explosive
furnished is not unnecessarily dangerous.''

III.

The court erred in modifying defendant's re-
quested instruction No. 1, by giving the following
additional instruction:

''This is not intended to qualify what I have
alread.y said, that if there was a general contract
for the construction of the road and the defendant
company having made that contract had knowledge
of it, then when it furnished the dynamite to be
used in the construction of the road it would be
subject to the obligation to use ordinary care, as
I have already stated to you."

14

IV.

The court erred in failing and refusing to give
that part of defendant's requested instruction No.
2, which reads as follows:

^'And if the Katalla Company furnished un-
safe explosives to said contractor and the contractor
knew the unsafe character of such explosive or by
reasonable inspection could have determined its
character and with such knowledge or opportunity
of knowledge said contractor purchased from the
Katalla Company such explosives and an accident
occurred in the use of the same, then the Katalla
Company would not be liable, but the direct and
proximate cause of such an accident would be the
act of the contractor in using or furnishing for use
such unsafe explosive."

15

ARGUMENT.

What Caused the Premature Explosiox?

This inquiry is not answered in the record.
No witness testified to the point and no proven fact
establishes the cause of the accident. It is a matter
of surmise, conjecture, guess-work.

It is an undisputed fact that M. J. Heney was
the general contractor and that Sam Rollin and
others were the sub-contractors at the place of ac-
cident (Transcript of the Record, pp. 46, 47, 69 and
119). It also appears, without dispute, that John-
son and others were engaged in drilling in the tun-
nel on the day of accident, when Riley, one of the
sub-contractors, with another man, went into the
tunnel and commenced to load dynamite into a hole
which had been shot, but had not broken out. It is
without dispute that the loading was performed by
the man cutting away the wrappers which enclosed
and protected the dynamite, while Riley pushed the
bare dynamite into the rocky hole. All of the wit-
nesses were engaged in the work of drilling and of
course only incidentally noticed what was being
done by the men loading the hole. The plaintiff
admits that he did not know what caused the explo-

16

sion and that he had not noticed the men who were
loading the hole for three or four minutes prior to
the explosion. (Transcript of the Record, pp. 37,
64 and 65.) All agree that the explosion occurred
in the hole. Two witnesses claim that they, while
engaged in their work, from time to time looked in
the direction of the men who were doing the load-
ing; but, as in all such cases, they were able to
testify to nothing definite except that an explosion
occurred. The plaintiff testified on this point as
follows :

*^Q. Do you know what exploded — where the
powder was that exploded?

A. No.

Q. You don't know whether it was in the hole
or in the box?

A. No, it was in the hole.

Q. Then your idea is that Riley when he was
loading the powder in the hole set it off some way?

A. No, the powder was in the box after the ex-
plosion.

Q. How is that?

A. The powder was in the muck — was in the
box — the ])ox was mashed to pieces but the powder
was in the muck.

(Transcript of Record, p. 57.)

Q. ])() you know whether that explosion occur-

17

red in the hole or occurred in the box of powder
that was sitting beside Johnson and Riley?

A. No. I saw after I was on hands and knees
and the explosion, the powder was in the muck —
some powder was in the muck.

Q. You saw powder in the muck ?

A. Yes.

Q. You are sure that powder in the box did
not explode?

A. No.

Q. It was the powder in the hole that exploded?

A. Yes.

Q. Then the jar and the throwing of this rock
around there did not explode the powder in the loose
rock, did it?

A. No — in the hole — it break that hole.

Q. But you say that lying in the muck you saw
powder that was not exploded, didn't you?

A. Yes, some powder left.

Q. That is, there was not any powder before
Riley came in, in that muck ?

A. No.

Q. So that the powder which you saw in the
muck was powder that was in the box that Riley
brought in there?

A. Yes.

Q. And that powder did not explode?

A. Not in the muck.

Q. What caused it to go over there — ^what threw

18

it over into the muck, do you know, — was it the
explosion ?

A. Yes, the explosion.

Q. The explosion in the face of the tunnel
threw this powder in the box over in the muck
did it?

A. Yes, and it break that box.

Q. But it didn't explode that powder in the
muck ?

A. No."

(Transcript of Record, p. 65.)

It will be noted that the term ^'muck" used in
mining and blasting refers to rock which has been
at some time blown out by a blast; and that the
term *^ powder" is used synonymously with explo-
sive or dynamite. (See Transcript of Record, pp.
67 and 68.)

On the trial two witnesses testified that the dy-
namite being used b}^ the sub-contractors, at the
time and about the time of the accident, was in
wrappers which were bleached or discolored, and
seemed to be covered with an oily moisture, and that
some of the boxes and sticks of dynamite had the
figures ''May 15, 1907" printed on them. The ex-
pert mining engineer and chemist, I. F. Laucks,
testified that when oily drops or *' sweats" collect
on the wrapper, it indicates that the nitroglycerine

19

has freed itself from the other substances and col-
lected upon the wrapper, and that such condition
arises as a result of the dynamite having been stored
in a moist atmosphere, and that the reason the age
of the dynamite affects its character as to danger is
because greater opportunity is given for the nitro-
glycerine to separate from the other constituents of
the dynamite. He also testified that, in loading dy-
namite, one should remove the paper wrappers or
cartridges and press the dynamite carefully into
the hole and tamp it, not by hard blows, but by
pressure alone; and that the paper wrappers are
kept about dynamite for the purpose of protecting
it from jars, — showing and indicating by his tes-
timony that any sudden jar or shock is likely to
cause a premature explosion of any dynamite, all
of which squares with common knowledge and or-
dinary judgment. This witness further testified:

*'Q. Now, Mr. Laucks, as I understand you,
time in showing any deterioration of dynamite is
chiefly influential in that regard because it gives
so many opportunities for the nitroglycerine to
separate from the sawdust or other inert substance?

A. That is one of the reasons, yes.

Q. If it is kept at an even temperature, pre-
served from extremes of heat and cold and pre-
served from moisture it takes longer to deteriorate
than it otherwise would"?

20

A. It does.

Q. If you take dynamite and unload it, haul it
over the ice, and lay it out in the snow and put it
in sheds for five or six weeks, so that the wrapper
becomes discolored by moisture — that treatment and
that method of handling it would cause it to de-
teriorate rapidly, would it not?

A. It would — a moist climate.

Q. If dynamite is put in a wet or damp place
and held for five or six weeks, it would deteriorate
vary rapidly under those conditions ?

A. It would.

Q. Dynamite that has deteriorated, as you say,
so as to go off suddenly, easily, that will occur when-
ever it is given a very severe shock, will it not?

A. Not necessarily a severe shock. It will when
it is given a severe shock, but if you mean whether
it needs a severe shock —

Q. I say a severe shock will explode it?

A. Yes.

Q. If a box of dynamite is put near a hole
where a blast is exploded suddenly, and if the box
of dynamite is blown to pieces and the dynamite is
scattered all around over the surrounding rocks in
the tunnel and that dynamite does not explode,
would you say it was badly deteriorated?

A. I hardly heard the question.

Q. Suppose that I have a box of dynamite
situated in front of a hole and I exi)l()de the hole
so that the box of dynamite is blown all over the
rocks and the dynamite is blown all around over
the rocks in that neighljorhood and it does not ex-
plode, is that dynamite very badly deteriorated?

21

A. No, I should not say that it was."

The case on the facts stands in this way: In
the hypothetical question propounded by counsel
for the plaintiff, it was inquired if dynamite was
badly deteriorated, and was being handled and used
carefully, and exploded, what would be the cause of
such explosion? The expert witness answered that
it would be because of the defective condition of
the dynamite. That answer would have been evi-
dence, if the elements stated in the hypothetical
question appeared in the evidence. But, it affirma-
tively appears that while there may have been some
bleaching or discoloration upon the wrappers of the
dynamite, yet either that had not affected the char-
acter of the dynamite, or the witness testifying to
the discoloration had not properly discerned the
facts or had mistakenly stated them. It appears
that the dynamite was not defective and had not
deteriorated. The dynamite purchased by Heney
from the Katalla Company and furnished to these
sub-contractors had been used continually by them
in this work from February till May 26th, 1910.
We say *^used during that period," because the tun-
nel was commenced in January and dynamite was
supplied there during the months of February,
March and April (Transcript of Record, p. 128),

22

and there is not a hint in the record that it had been
found defective or insufficient. It further appears
from the undisputed evidence that when subjected
to the jar of this explosion, and thrown about the
loose rock in the tunnel, it failed to explode. The
expert witness states that when dynamite has de-
teriorated to the extent claimed by the plaintiff, that
it was likely to explode spontaneously or from a
light touch, and of course the more shock that was
applied to it, the more likely it was to go off.
(Transcript of the Eecord, p. 104.) He well says
that any d}Tiamite which was subjected to the force
which the dynamite Eiley was using was subjected
to, and did not explode, had not deteriorated.
(Transcript of Eecord, p. 108.) We would not
have to wait upon expert testimony for this infor-
mation. The mere statement of the ciiTumstance
has already brought us to that conclusion. The
facts here do not show any defective condition of
this dynamite. They do show an *^ unexplained ex-
plosion." The hole into which Eiley was tamping
the powder had been shattered by blasts which
failed to blow it out, and it is reasonable to suppose
that Eiley, in tamping the d3^namite, encountered
some obstruction or ragged edges of rock, and vio-
lated the rule fixed by the expert witness ''to press

23

the powder in carefully, not by hard blows, but
by pressure alone,'' and that the explosion occurred
by the shock which the dynamite received while
being tamped in such an improper manner. This
question, in substance, was propounded to the ex-
pert witness: If one should take dynamite, it not
appearing one way or the other as to its condition,
and should undertake to load it into a hole in which
dynamite had theretofore been exploded, and in
ramming that powder into the hole there was an
explosion, what would be your judgment as to what
caused the explosion?

To which the answer was :

*^A. That is a pretty broad question to answer.

Q. It does not require an expert to answer that,
— it requires a little common sense, is not that about
all?

A. Well, I cannot answer that question unless
I know some of the conditions, if you say they
simply loaded it into the hole, I don't know^ hoAV.

Q. Without any knowledge that that powder
was good or bad, and without any knowledge as to
what the man was doing to it at the time the powder
exploded, you cannot tell what caused the explosion,
can you?

A. No, I could not.

Q. It is purely guess-work? \

A. Yes."

(Transcript of Record, p. 106.)

24

So, here, upon the record as it finally stands, it
still remains ''pure guess-Avork.'' There are certain
facts that we do know, and that is that the dvnamite
sold by the Katalla Company to Heney and de-
livered during the winter and spring months, was
not defective, because it was used during that period
without trouble. If the case or box of dynamite
which Riley had in the tunnel that day, had been
deteriorated as claimed by plaintiff, the whole box
would have been exploded and not a soul would have
been left to tell the tale. There are about 180 sticks
of dynamite in each case (Transcript of the Record,
p. 84).

As the case stands, it does not appear that the
explosion was caused by defective dynamite, and
upon the other hand, the real cause of the prema-
ture explosion is not certainly known. It might
have occurred, as suggested by the trial judge, in
his instructions, through a hidden or latent defect
in the stick of dynamite used, or by a condition in-
duced by the unusual formation of the hole in which
it was used, or by the negligence of the men who
were using the dynamite, or from some cause not
o])served or reported by the witnesses. No one
knows how it occurred. There is no presumption of
law tliat it occurred through any defect in the dyna-

25

mite. If this action had been brought against the
snb-contractors, the unexplained happening of the
accident would have been prima facie evidence of
negligence in handling the blasting, and the sub-
contractors would have been compelled to explain
the explosion as having been caused other than
through their negligence, or a presumption of negli-
gence would have arisen as against them.

'Klepsch V. Donald, 8 Wash. 162;

Beall V. Seattle, 28 Wash. 603.

If such presumption of negligence against the
sub-contractors would obtain in an action against
them, the same presumption should obtain in this
action.

In the case of Gibson v, Miltvaukee Light, etc.,
Co., 128 N. W. Reptr., 877, the Supreme Court of
Wisconsin had to deal with a problem akin to the
one here, except that that was a case where the re-
lation of master and servant existed between the
parties. The master furnished the servant a fuse,
and it was claimed by the servant that the fuse was
defective, thereby causing a delayed explosion to
his injury. The evidence left the matter in doubt
as to what caused the injury, there being several
matters which might have caused the delayed ex-

26

plosion, and the evidence as to the defective fuse

was (as here to the defective dynamite) vague and

unsatisfactory. The court said:

*'We have, then, not only a situation in which
an inspection would, in all probability, not have dis-
closed any defect in the fuse, if one had existed, but
also a situation wiiere it is a matter of conjecture as
to whether or not the delayed explosion was the
result of any defect whatever in the fuse. It might
result from the acts of the plaintiff himself. No
one can make more than a guess as to what its cause
was, and several guesses equally plausible may be
indulged in. There is no reasonable certainty that
any one suggested cause w^as in fact the cause of
the delayed explosion. Its real cause lies wholly
in the field of conjecture, and is as likely to be
found outside of the sphere of defendant's duty as
within it. Hence no actionable negligence can be
predicated thereon. ' '

The pertinency of the language above quoted to
the facts of the case at bar is obvious and patent,
the reasoning commends itself to an impartial judg-
ment, and the logic is irresistible. In a long line
of cases in this jurisdiction, in the Supreme Court
of Washington, this rule is firmly established. In
order for one to recover for an injury, it is neces-
sary for him to show, not only that the party to be
held liable has been guilty of negligence, but that
such negligence was the cause of his injury. There
must be evidence, direct or circumstantial, that there
was negligence on the one side, and injury resulting

27

in damages on the other, and that the injury and
damage follow the negligence, and were produced
thereby. While it is true that the weight of the
testimony is entirely for the jury, yet mere specula-
tion and conjecture must not be confused with legiti-
mate testimony.

Whitehouse v. Bryant Lbr. &c. Co., 50 Wash.
563;

i Hanson v. Seattle Lbr. Co., 31 Wash. 604;

Armstrong v. CosmopoUs, 32 Wash. 110;

Reidhead v. Skagit County, 33 Wash. 179;

Stratton v. Nichols Lbr. Co., 39 Wash. 323;

Olmstead v. Hastings Shingle do. Co., 48
Wash. 675;

Peterson v. Union Iron Works, 48 Wash.
505.

Also see:

Patton V. Texas &c. R. Co., 179 U. S. 658.

What Was the Condition of the Explosive When

It Left the Possession of the

Katalla Company?

It appears from the testimony of Johnson that
he understands that Sam Rollin, the sub-contractor,
is dead, and from the testimony of E. E. Siegley and
others it appears that M. J. Heney is also dead. One
is also justified in arguing that as a rule station men

28

do not afford a very promising source of recovery.
Under the conditions, the defendant in error must
rely upon recovery against the KataUa Company.
It is a matter of fair argument, tlierefore, to say
that an industrious effort lias been made to switch
the cause of the accident from the acts of the station
men to proof of defective condition of the explosive.
This effort, however, as we have seen, has been
futile. Whatever attempt may have been made to
suggest a deteriorated condition of the dynamite on
the day of its use, there is nothing to show that such
condition existed when it left the possession of the
Katalla Companv. The onlv evidence as to how the
dynamite was furnished by the Katalla Company is
the testimony of Samuel Murchison, Heney's super-
intendent. This witness testifies that after the exe-
cution of a second agreement between Heney and
the Katalla Company, under which they were ope-
rating in 1910, Heney furnished the powder to the
station men, and it was supplied by the Katalla
Company to Heney at a set selling price (Transcript
of Record, p. 71). He also testifies that work on the
tunnel at ''Mile 123" was commenced in January
or February, 1910, and that Heney began freighting
dynamite or explosives to that point about the last
of January, and that they afterwards sent some up

29

in February, in March and in April (Transcript of
Record, p. 128). The accident occurred May 26,
1910. There is no intimation that anything was
wrong with this dynamite at the time it left the
possession of the Katalla Company and went into
the possession of Heney. Heney transported the
explosive to different points along the line and dis-
tributed it to the station men who kept it for use
as needed. It further appears affirmatively from
the testimony of the superintendent that there was
no apparent defect in this dynamite when it was
furnished by the Katalla Company, or rather, at
the time Heney furnished it to the men upon the
station. (Transcript of Record, p. 72.) That part
of the testimony is the only testimony in the record
establishing the condition of the dynamite at the
time it left the possession of the Katalla Company.
We are, therefore, confronted by the fact that the
superintendent of the contractor, when he took de-
livery of the dynamite and distributed it to the
station men, discovered nothing in its character
showing any deterioration. If the dynamite ex-
hibited the appearance which the witnesses claim
that it had on the day of the accident, it had ac-
quired such appearance, and had undergone the
alleged process of deterioration while in the pos-

30

session of the sub-contractors. While we are deal-
ing in this case in mere matters of conjecture and
hypothesis, it is a good working hypothesis to as-
sume that this discoloration mentioned by the wit-
oesses, occurred in the Alaskan camps during the
winter and spring months. The expert witness of
defendant in error, says:

^^Q. If it (dynamite) is kept at an eyen tem-
perature, preseryed from extremes of heat and cold
and preseryed from moisture, it takes longer to de-
teriorate than it otherwise would"?

A. It does.

Q. If you take dynamite and unload it, haul it
oyer the ice, and lay it out in the snow and put it
in sheds for fiye or six weeks, so that the wrapper
becomes discolored by moisture — that treatment and
that method of handling it would cause it to de-
teriorate rapidly, would it not?

A. It would — a moist climate.

Q. If dynamite is put in a wet or damp place
and held for fiye or six weeks, it would deteriorate
very rapidly under these conditions?

A. It would."

The absurdity of the contention of defendant
in error appears by recitation of a few facts : Here
is an invoice of dynamite delivered by the Katalla
Company to Heney. It is claimed that it is so badly
deteriorated that it is apt to be prematurely ex-
ploded at a sliglit touch or any rougli handling. It

31

is loaded on the wagons, hauled by teams over rough
roads, unloaded, distributed to different camps,
stored in log 'houses, used during a period of four
months by large numbers of men, and yet it failed
to explode, except in the one instance where it was
being rammed into a shot hole, and being handled
by men who had the opportunity of inspecting every
particle that went into the hole. What conclusion
would reasonable minds draw from these admitted
facts? Would it be that this dynamite was unsafe,
defective and extra-hazardous, when Hene}^ took it
from the Katalla Company? Did it deteriorate be-
tween the time it left the Katalla Company and the
26tli of May? Was it defective and extra-hazardovis
on the 26th of May? Did the explosion occur be-
cause of its extra-hazardous character? None of
these questions are answered in the record, except
there is the irrefutable proposition that at the time
the Katalla Company delivered it, its condition was
not as charged in the complaint.

The court charged the jury (Transcript of
Record, p. 140) that if at the time the dynamite left
the possession of the defendant company it was not
of an extra-hazardous and unnecessarily dangerous
character, then there would be no liability. This is
patently the law. There is not a syllable of testi-

32

mony nor a single fact which shows that it was
* ^ extra-hazardous and unnecessarily dangerous"
when it left the possession of the defendant com-
pany; but, on the other hand, the contractor's super-
intendent discovered nothing wrong with it, and all
of the circumstances go to show that it did not then
have the extra-hazardous and dangerous character
referred to by the court. Not only did the jury fail
to follow the law and the evidence on this point, but
the trial court gricA^ously erred in permitting the
case to go to the jury, and later in overruling the
petition for new trial on this ground. This court
is looked to for the correction of these errors.

Did the Company Owe Any Duty to Johnson?

No contractual or other relation existed between
the Company and Johnson. This fact is conceded,
and the court so charged the jury. The only rule
of law by which plaintiff in error may be held liable
is the rule that it owed a duty to all the world, a
violation of which renders it liable to any member
of the world injured. The cases of negligence fall-
ing within this rule arc those involving poisonous
drugs, high explosives and other dangerous com-
modities. One who knowingly delivers a dangerous
explosive, without giving notice of its intrinsic dan-

33

ger, is liable to any person who is injured thereby,
without reference to any privity of contract, is a
general statement of the rule.

Weiser v. Holzman, 33 Wash. 87.

This case fully expresses the rule and carries
it to its utmost limits.

See also:

Waters-Pierce Oil Co. v. Deselms, 212 U. S.
159.

These cases annoimce and apply the rule on
which defendant in error relies, and the doctrine
and reasons are there stated, and the limitations of
the rule aptly indicated. This rule is applied and
has been applied almost wholly to the manufacturer
of the article. The rule had its origin in those cases
where a poisonous drug was put out labelled as an
innocent one, or naphtha, benzine or some other
highly explosive oil as ordinary illuminating oil, or
a highly explosive dynamite instead of a slow pow-
der, or a bottle of champagne cider charged with an
explosive and likely to explode, vended as an inno-
cent package and not liable to explode. In all of
these cases there are the elements of misrepresen-
tation, fraud or deceit.

34

In the case at bar there are no such elements
charged or proven. The only charge is that the dy-
namite was aged and had deteriorated in quality.
According to the evidence, if these facts were true,
this condition of the dynamite was open and ap-
parent to Heney and the sub-contractors who were
dealing in it. It was entirely competent for those
to whom the Company delivered the dynamite to
purchase and undertake to use dynamite of the age
and which had been subjected to the exposure
stated ; and w^hen they undertook to do so, the Com-
pany is in no way liable to persons injured by such
use. It must be admitted that if these persons had
knowledge of the facts (and there is nothing to
show to the contrary), and a careful inspection w^ould
have revealed the facts they could rightfully pur-
chase and use such dynamite, subject to any liability
which they might incur by reason of such use. Thc}^
might assume to use it, for instance, because they
could obtain it for less money or because of inability
to get any other, and they had a lawful right so to
do, assuming all the consequences of such use. Hav-
ing the right and power to purchase and use such
dynamite, they were burdened with the duty of
knowing what they were getting, and the proximate
and efficient cause of this accident was the breach of

35

their duty in that regard, and if the dynamite be
defective, they are liable and the Company is not.
Their act in purchasing this dynamite, without any
showing of fraud, deceit, misrepresentation or sup*
pression of facts by the Company, constitutes an
independent, efficient human agency, intervening be-
tween the act of the Company in selling and the
accident itself.

The Act of Selling the Dynamite Was Not the

Proximate and Efficient Cause of

THE Accident.

In this connection we shall desire to have con-
sidered the assignments of error relative to the
instructions given and refused by the court, as con-
tained under Specifications of Error numbered II,
III and IV,

The plaintiff in error requested the court to
charge the jury to the effect that no contractual
relation existed between Johnson and the Company,
and that the act of selling the explosive was not the
direct and proximate cause of the accident, but
there was the independent and intervening act of
the contractor in furnishing and using the dynamite.
The court modified and refused these requests so as
to decline placing such an instruction before the

36

jury. And, without modification or limitation, the
court instructed the jury in substance that where
one lets a general contract for the construction of
a railroad, knowing that large numbers of men are
employed in the work of construction, and furnishes
an explosive to be used by those doing the construc-
tion work, it is the duty of such a person to use care
to see that the explosive furnished is not unneces-
sarily dangerous. This instruction would not have
been objectionable if it had been limited as con-
tended for by plaintiff in error and as requested
in its requested instruction No. II. The court, how-
ever, refused that portion of requested instruction
No. II, limiting the general charge, and sent the
case to the jury upon precisely the same instructions
as would have been proper if the facts in the case
were akin to those in Weiser v. Holzman, supra,
and like cases.

Plaintiff in error is not charged either by the
pleadings or proof with having sold or delivered
nitro-glycerine instead of dynamite, or gun cotton
instead of dynamite, or with having delivered dyna-
mite where black powder was promised and ex-
pected, but only with having delivered dynamite
aged two years and exposed to the elements. While
we admit the rule on which defendant in error relies

37

in its fullest scope and measure, and are not seeking
to de-limit it as it has been applied in the adjudi-
cated cases, we insist it is not applicable to the state
of facts in this case. Like all rules of law, it has its
natural and reasonable limitations beyond which it
cannot be justly extended. This cause falls outside
of such limitations, and the rule contended for does
not reach it and cannot be justly applied to it, with-
out directly overturning two other primary, funda-
mental rules of law, namely:

1. That the law looks only to the proximate and
not to the remote cause;

2. That when an article has been manufactured
and delivered or transferred by vendition, without
the element of fraud, misrepresentation, deceit, or
mis-statement as to its nature, quality, kind and
character, then the liability of the manufacturer or
vendor ceases and that of the vendee or user begins.

The sticks of dynamite and the boxes in which
they are contained, if we are to believe the evidence
of the witnesses Carson and Johnson, had stamped
on them the date May 15, 1907, and the wrappings
in which the dynamite was held were discolored and
covered with an oily moisture, which indicated the
exudation of nitro-glycerine. If these conditions

38

showed anything, thev showed the age and deterio-
ration of the dynamite. If we admit that the dyna-
mite was deteriorated when it left the Company, it
was a fact which was open and apparent to the con-
tractor and snb-contractors. It was open and ap-
parent to Sam Eollin and Ed Riley and within their
knowledge when from time to time they took the
same and used it. Thev knew what thev had ob-
tained from the Katalla Company and from Heney,
and they knew as well as the Katalla Company did
everything concerning its age and deterioration. The
Company was not the wholesaler or manufacturer
of the dynamite. It had it in its possession. It sold
the explosive to Heney, who had equal means of
knowledge of its character with the Katalla Com-
pany. Heney delivered it to the sub-contractors,
who had better knowledge of its condition at the
time of use than any of the preceding parties. It
was not like the case of selling a gun knowing of
its latently defective construction, or of selling
naplitha, representing it to be oil, or delivering to
a carrier a carboy of nitric-acid without disclosing
its contents, or selling a nostrum as an innocent
medicine when it contains injurious qualities.

In the case of Weiser v. Holzman, supra, the
dangerous explosive was sold and delivered under

39

the innocuous name of ^^ champagne cider" without
anything to indicate that it was a dangerous ex-
plosive.

In Waters-Pierce Oil Co. v. Deselms, 212 U. S.

159, naphtha was put out instead of oil, and the

court said:

^^In view of the tendency of the proof as to the
entire absence of knowledge by Powers and Deselms,
when purchasing from the Oil Company, and the
ignorance of Deselms when he bought from the firm,
of the character of the fluid, it is certain that in the
case before us the act of the Oil Company in any
view was the proximate cause of the accident, and
no other independent or efficient cause or wrong
can be legally said to have occasioned the same/'

The italics in this quotation are our own. This
quotation indicates the very reason for non-liability
which we insist upon in this case. The plaintiff in
error did not pretend to furnish dynamite and fur-
nish something else. It did not pretend to sell a
harmless substance and deliver a dangerous one;
but it delivered an explosive in a condition which
was known and understood by all parties to the
transaction, and such act of selling was not the
proximate cause of the accident, because, contrary
to the facts in the Deselms case, there was anotlier
independent and efficient cause intervening.

40

What was the legal effect of the transfer and
delivery of such defective dynamite to the users
thereof 1 The users were conducting blasting ope-
rations and had purchased or acquired this dyna-
mite for the purpose of such operations. It then
became clearly the duty of the users of the dyna-
mite to so inspect it as to prevent the liklihood of
injury to others, they being in full charge of the
dynamite and of the blasting operations, and to
perform all the duty the law requires of any one to
others likely to be injured by the dynamite in the
blasting operations. This duty was full and com-
plete. It not only included the duty to conduct the
operations themselves in a careful and harmless
manner but to use dynamite suitable for the purpose
and unlikely to do harm. Clearly, the plaintiff could
recover from these users of the dynamite. Clearly,
they are primarily liable to him, and as we contend,
not only primarily liable but solely liable. While it
does not necessarily follow that because plaintiff
has a complete and perfect cause of action against
the users of the dynamite, he has no cause of action

against others, yet if tlic- f^^fettttl connection of the

A
accident is broken by the interposition of an inde-
pendent Inunan agency ])etween the act of defendant
and the accident, consisting in the neglect of duty

41

of the users of the dynamite to use all precautions
with reference thereto, including the precaution of
inspection and examination, then the efficient cause
of the accident is the breach of duty owing by the
users of the dynamite, not the preceding tortious or
negligent act of the defendant, which, in the eye
of the law, is merely one of a chain of circumstances
leading up to the accident.

The foregoing principle was adverted to in the
Waters-Pierce case above cited. Also see, Losee v.
Clute, 51 N. E. 494.

In Iluset V, J, I. Case Co., 120 Fed. 865, 61 L.
R. A. 303, the general rule is clearly stated as fol-
lows :

^^So, when a manufacturer sells articles to the
wholesale or retail dealers, or to those w^ho are to
use them, injury to third persons is not generally
the natural or probable effect of negligence in their
manufacture, because (1) such a result cannot ordi-
narily be reasonably anticipated, and because (2)
an independent cause — the responsible human
agency of the purchaser — without which the injury
to the third person would not occur, intervenes, and
as Wharton says, insulates' the neelia'ence of the
manufacturer from the injury to the third person."

The learned writer of that opinion, Mr. Justice
Sanborn, then proceeds to note the exceptions to
the general ride, the two first of which are not per-
tinent to this case, and the third is stated as follows :

42

^'The third exception to the rule is that one
who sells or delivers an article which he knows to
be imminently dangerous to life or limb to another
without notice of its qualities is liable to any per-
son who suffers an injury therefrom which might
have been reasonably anticipated, whether there
were any contractual relations between the parties
or not."

It will be seen that the authorities cited to sus-
tain the third exception all contain the element of
misrepresentation, fraud or deceit in the original
sale.

The cause of action presented in this case pre-
sents in our judgment no such element as that found
in the cases sustaining the third exception to the
general rule, for which plaintiff in error contends,
and which third exception constitutes the general
rule on which defendant in error relies.

The persons to whom the dynamite was sup-
plied undoubtedly became subject to the duty of
knowung its nature, its condition, and its defects, if
any, and of using the dynamite with reference to
such knowledge, subject to the penalty of being
lial)le to any one injured for their want of carc^ in
handling the dynamite. The interposition of the
independent human agency and the independent
negligence of this human agency is so clearly ap-

43

parent in the case pleaded that it seems to us it falls
directly within the rule laid down by Wharton, and
recommended by the court above quoted, as ^insu-
lation."

The court will bear in mind that the rule on
which defendant in error relies does not rest at all
upon the extension of the contractual obligations
between the manufacturer and the vendor, and his
vendee, to third persons or strangers, but rests
wholly upon the violation of a primary duty of the
manufacturer or vendor owing from him to all the
world. It is therefore immaterial whether plaintiff
in error violated any contract of implied or express
warranty as to condition of the dynamite, when it
furnished same to those who were using it. Such
violation of its contract as we have pointed out
above, does not render it liable to third persons in
the neighborhood of the dynamite injured while the
purchasers thereof are using it. In fine, this case
must rest wholly upon the ground that the Com-
pany was guilty of breach of duty w^hich it ow^ed to all
mankind when it delivered to the blasters dynamite
two years old which had been exposed as alleged in
the complaint. We do not think this is the law nor
the rule. It was entirely competent for those to
whom the dynamite was delivered to undertake to

44

use dynamite of that age which had been subjected
to the exposure stated. And when the.y undertook
to do so, defendant is in no way liable to persons
injured by such use.

In conclusion, we desire to call the attention of
the court to the fact that there was no dispute in
the evidence. The case was tried upon the testi-
mony of witnesses produced by the plaintiff below.
The case made out was one purely of law for the
court, upon the motion of plaintiff in error for a
directed verdict. We respectfully submit that the
judgment below should be reversed and the case
remanded with instructions to enter judgment in
favor of the plaintiff in error here and defendant
below.

Respectfully submitted,

W. H. BOGLE,
CARROLL B. GRAVES,
F. T. MERRITT,
LAWRENCE BOGLE,

Attorneys for Plaintiff in Error.

L^

IN THE

ffltrrutt Qlourt of App^alfi

FOR THE NINTH CIRCUIT.

THE KATALLA COMPANY,

a corporation,

Plaintiff in Error, [ <<ilOO

) No..

V,

JOHN P. JOHNSON,

Defendant in Error,

Error to the United States District Court for the

Western District of Washington,

Northern Division,

Brief of Defendant in Error

MARTIN J. LUND,

Attorney for Defendant in Error.
359 Arcade Bldg.,
Seattle, Wash.

The Acme Press, Madison Block, Seattle

SEP - 7 19tt.

IN THE

(Hxtmxt fflourt of Ap^j^als

FOR THE NINTH CIRCUIT.

THE KATALLA COMPANY,

a corporation,

Plaintiff in Error}

) No..

V.

JOHN P. JOHNSON,

Defendant in Error.

Error to the United States District Court for the

Western District of Washington,

Northern Division.

Brief of Defendant in Error

359 Arcade Bldg.,
Seattle, Wash.

MARTIN J. LUND,

Attorney for Defendant in Error.

IN THE

Qltrrmt flinurt of Ap^j^la

FOR THE NINTH CIRCUIT.

THE KATALLA COMPANY,

a corporation,

Plaintiff in Error,

) No..

V.

JOHN P. JOHNSON,

Defendant in Error.

Error to the United States District Court for the

Western District of Washington,

Northern Division,

Brief of Defendant in Error

STATEMENT.

The Copper River & Northwestern Railroad
engaged the Katalla Company to build a railroad
for it in Alaska. The Katalla Company sublet the
construction of the road to M. J. Heney, but fur-

nished all the explosives used in the construction of
the road as part of its agreement with Heney. (Rec.
131, 132; 127-132; 69-71.)

In the spring of 1910 defendant in error sought
and obtained employment on the construction of the
road. While he said he was working for the station
men, he was brought up there by Heney.

^^Q. Who did you see in Seattle in reference to
that ?

A. I saw Mr. Heney 's agent on the wharf.

Q. And then what arrangement did you make,
if any, with him?

A. We made an arrangement with him and se-
cured our ticket through him. * * *

Q. What arrangement did you make through
him?

A. We made an arrangement with him to go to
Cordova and be shipped on from there.

Q. Where to?

A. To the construction work on the Copper
River Railway.

Q. And for what purpose ?

A. Por the purpose of working on the rail-
road." (Rec. 73, 74.)

The witness further said, that when they came
to Cordova they were given a pass and shipped up
to the place of construction. (Rec. 74.)

Ou the 26th day of May, 1910, he was working
on station 123, in a rock tunnel where dynamite was
used. While he was so doing, two other men, em-
ployed on the same job, were loading a hole with
dynamite in the usual and careful manner, and the
dynamite exploded prematurely, while in the process
of loading, inflicting the injuries complained of.
The dynamite was furnished by the Katalla Com-
pany under its agreement with Heney. The dyna-
mite was delivered to Heney at Tiekill and by him
taken to the men on the work; that delivered at
mile 123 was in Heney 's possession from five to
eight hours, and while in his possession it was not
exposed to the weather nor any condition which
would tend to render it extra hazardous, (Rec. 128,
129), and Heney had no knowledge that the dyna-
mite was more than two years old (Rec. 131) nor
that there was any other defect in it. (Rec. 72.)
And while the dynamite was in the hands of the men
on the work it was properly stored and cared for.
The dynamite furnished by the Katalla Company to
the men on mile 123 and which was used at the time
of the premature explosion was more than two years
old, and the wrappers were discolored and covered
with an oily substance or liquid, showing the pres-
ence about the wrappers of free nitro-glycerine, ren-

dering it extremely hazardous to handle. (Rec. 100,
101.) The premature explosion was caused by the
extra hazardous and defective condition of the dvna-
mite, according to the opinion of the expert. The
facts will be further stated and the record cited in
detail in the argument. There are a few inaccu-
racies in the statement of the facts in plaintiff in
error's brief, but they will be pointed out as the
argument proceeds.

ARGUMENT.

Plaintiff in error is held liable for the injuries
sustained by defendant in error under two well
established legal principles, viz:

1. **In the absence of provision therefore in
the contract, the contractee is usually under no duty
to furnish any appliances for the contractor, but if
unsafe appliances are furnished by the contractee
and a servant of the contractor is injured thereby
the contractee is liable, especially where it is the
duty of the contractee to furnish the appliances
because of his agreement with the contractor."
(Quoted verbatim from text of 26 Cyc. 1568.)

2. *^The manufacturer or vendor, who deals
with an article imminently dangerous in kind, owes
to the public a positive and active duty of employ-
ing care, skill and diligence to limit that danger.
In such case the liability does not rest upon the
ground of warranty, * * * nor does it depend on
privity of contract, but arises from a duty not to
expose the public to danger. Articles of the kind

under consideration are dangerous chemicals, ex-
plosives, poisons and dangerous drugs." (29 Cyc.

479.)

Plaintiff in error has noticed only the second
of these principles in its brief, although I rested my
case chiefly on the first and that was the theory
upon which the case was submitted to the jury as
shown by the court's instructions. The court in-
structed the jury in part as follows:

*^It is the law, however, that if the owner of a
railroad engaged in constructing that railroad, lets
out a general contract for the construction of the
road and knowing that that contract has been let
and that large numbers of men are to be employed
or have been employed in the actual work of con-
struction, furnishes an explosive to be used by the
individuals who are to actually do the definite con-
struction work, it is the duty of the owner of the
railroad furnishing that explosive under those cir-
cumstances, to exercise ordinary care to see that the
explosive furnished is not unnecessarily dangerous.
That is, if the facts are as contended for by plain-
tiff, along the lines which T have just mentioned, it
was the duty of the defendant company to act with
ordinary prudence to see that the dynamite which
it furnished and which was to be actually used in
the blasting of such excavations should not be de-
fective so as to be extra hazardous and unnecessarily
dangerous. If the defendant company used ordinary
care to that end within the definition which I have
given you, then it discharged its duty and no matter
how many accidents might occur from the use of
the dynamite there would be no liabilit}^" (Rec.
139.) '

Plaintiff in error contends throughout its brief

that it can be held liable only as a vendor. That it

8

sold the dynamite to Henev. Even so, I contend
that it is liable, if it sold defective and extra haz-
ardous dynamite Avithout giving notice of the extra
danger; but I contend that the evidence shows that
it furnished the d\Tiamite under its contract with
Hene}^ and as part of the contract, to be used by
the men who were to do the actual construction
work. This I think appears both from the evidence
and from inference legal drawn from the company's
silence on the point, and positive refusal to produce
the contract with Heney.

The complaint charges plaintiff in error with

negligence as follows:

'^1. That the defendant above named now is
and at all time herein mentioned was a corpora-
tion duly organized and existing under and by
virtue of the laws of the State of New York, and
doing business in the State of Washington, and
having its principal office in King County, Wash-
ington, and was engaged in the construction of the
Copper River & Northwestern Railroad, near Cop-
per River, Alaska. That on the 25th day of May,
1910, the plaintiff was employed as a laborer on the
construction of said road at a place about one hvm-
dred and twenty-three miles from Cordova, Alaska,
and the work was rock work, the rock being blasted
and removed by the use of dynamite, which was
furnished by the defendant for that purpose.

**2. That at said time the defendant negligently
and carelessly furnished the men working with the
plaintiff and in liis immediate neighborhood danger-

ous, unsafe, defective and extra hazardous dynamite
for use by them in blasting, in this, to-wit: That
the dynamite so furnished was more than two years
old and by reason thereof unsafe to use and liable
to explode prematurely, though handled ever so
carefully. That the dynamite so furnished by the
defendant had further been exposed to the air, wind,
rain and snow, heat and cold, before it was given
to the men for use, thereby rendering it extra dan-
gerous, unsafe to use and liable to explode prema-
turely, though handled ever so carefully. * * * That
said defendant negligently and carelessly failed and
neglected to inform the plaintiif and the men using
said dynamite of the extra dangerous condition of
the same.

^^3. That on said 26th day of May, 1910, the men
working with the plaintiff were loading a hole in
the rock with the dynamite so furnished by the
defendant, in a proper and careful manner, and
while they were so doing, the dynamite exploded
prematurely by reason of its extra dangerous and
unsafe condition, caused as "heretofore alleged, and
without warning and near the place where the
plaintiff was working, causing the injuries herein-
after alleged."

The plaintiff and his friends knew nothing
about the relations between Heney and the Katalla
Company. The officers were dragged into court
by subpoena by plaintiff, but proved very adverse
witnesses, and although plaintiff had served the
required legal notice on defendant to produce in
court its contract with Heney, it refused to do so.
and through a misunderstanding between E. S. Mc-

10

Cord and myself I did not discover that the contract
held by Heney was only a copy until it was too late
to compel the production of the original. The testi-
mony of the officers of the two concerns were as
follows, bearing on the relation of Heney and the
company:

Mr. Siegley testified:

**Q. What occupation or position do you now
occupy ?

A. Executor of the M. J. Heney estate.

Q. During the life of Mr. Heney what position
did you occupy?

A. I was his confidential clerk.

Q. His secretary? .

A. Yes.

Q. Have you in your possession a contract made
between Mr. Heney and the Katalla Company?

A. I have a copy of it.

Q. You were served with a subpoena duces
tecum to bring that contract with you?

A. Yes.

J. Why didn't you do so?

A. I did. I have brought all that we had.

Q. Didn't Mr. Heney ever have the original or
duplicate of the contract?

A. Well, this is a duplicate, I presume, hwi it
is not marked that way. This is the only thing I
ever had in my possession. As regards the other

11

contract, I don't know, I presume the original is
out with the company. I don't know. That is the
only one I have seen (showing)."

By Mr. Graves:

'^Q. Mr. Siegley, this paper which you have
produced is all in typewriting, the signatures, too?

A. Yes.

Q. It is a copy, then?
A. Yes.

Q. All you know anything about a contract
covering the year 1910 is simply that you find a
copy like this in your files'^

A. That is the only one I had in my possession.

Q. And you have never compared it with the
original?

A. I never have.

Q. Have you ever seen the original?

A. I don't know as I have; I may have, but I
can't remember that I have.

Q. Can you say now that this is a true copy of
the original, of your own knowledge?

A. Well, I can't say, because I don't know as
I have ever seen the original contract. That is the
only one I have ever seen."

By Mr. Lund :

'*Q. This is the contract dated January, 1909?

; A. Yes.

Q. That is the second contract?

12

A. That is the contract covering this portion
of the work.

Q. 1910?

A. 1909, 1910 and 1911.

Q. That is the contract — what can you say as
to whether or not this is the contract that you have
followed in dealing with the Katalla Company ?

Mr. Graves: I object to that.

Q. (Mr. Lund) : You have refused to give me
any information whatsoever in this matter?

A. I was subpoenaed in the case and I was not
supposed to give any information except on the
stand.

J. When I went down to talk to you, you could
not give me any information?

A. There are some points I had no right to
discuss in regard to the matter that I could see.

Q. And you say that this is the only contract
that you had in your possession?

A. That was the only one I had in my posses-
sion.

Q. And this is the copy which you followed and
went by in your dealings with the company?

A. So far as my dealings with the company,
I didn't need any copy at all. My dealings with
the company up to the time that the work was
being done, I didn't need any contract — ^my work
didn't necessitate any contract.

Q. As far as you know, to the best of your
knowledge and belief and judgment, this is a true
copy of the original contract?

13

A. So far as I know, yes.''

Mr. Lund: Now, if your honor please, about
a week, or several days ago, I served upon counsel
a notice — I am offering this in evidence and I want
to make the statement to the court, that some days
ago I served upon the attorneys of record for the
defendant company this notice (reading notice),
and Mr. Graves informs me that he has not got
the original here.

Mr. Graves: The company's office is in New
York City and this was served upon us four days
ago, and the only contract referred to by this notice
is in the office in New York City, and we had no
means of getting it here at the time requested by
counsel.

Mr. Lund : It seems to me that upon the state-
ment of the witness we are entitled to offer the copy
in evidence.

Mr. Graves: We object to the reception of it
on the ground that it is not shown to be a copy of
the contract called for by this notice. The notice,
if your honor please, reads as follows (reading no-
tice). There has been no showing that this is a
copy of that contract.

Mr. Lund: I will waive the question at this
time and will have Mr. McCord here in the after-
noon." (Rec. 23-26.)

Mr. McCord thereupon was called and testified:

*^Q. (Mr. Lund). You are a practicing attor-
ney here and have been in the practice here a
number of years?

A. Yes sir.

Q. You knew Mr. Heney in his lifetime?

14

A. Yes.

Q. When did he die?

A. October 10, 1910, I think that is the date.

Q. Mr. Siegley is now executor of his last will
and testament?

A. Yes.

Q. And you are one of the attorneys of record
for the executor of his estate?

A. Yes.

Q. And you are familiar, more or less, with
Mr. Heney's affairs?

A. Yes, to some extent.

Q. I will ask you to look at identification ''A"
(showing) and tell us if you have ever seen that
before ?

A. Yes sir.

Q. Where have you seen that?

A. It was brought to my office by Mr. Siegley,
one of the executors of the M. J. Heney estate.

Q. About what time was that?

A. Oh it must have been within a month or two
after his death.

Q. Where has it been since?

A. Well I think it was brought to my office in
the first place by Mr. Siegley along the early part
of 1911, and then it was returned to Mr. Siegley,
and I think it came back into my hands some two
months ago.

15

Q. And in what light has that paper been con-
sidered b}^ you as one of the attorneys for the
executor of the Heney estate?

Mr. Geaves: I object to that as irrelevant,
immaterial and incompetent as to what light it was
considered in by the witness, as not the proper
method of proving a contract.

The Court: The point has been made, Mr.
Lund — I don't know that counsel makes the point
here — that the original contract should be produced,
but he does make the point that there is no proof
that this is a copy; that no person who has seen the
original has made any comparison between that and
this. I do not feel clear that the light in which
Mr. McCord, as attorney of the estate, regarded it
would be evidence.

Q. (Mr. Lund). I will ask you, Mr. McCord,
if you have ever seen the original of that?

A. No sir, I never saw the original. This was
handed to me as a copy of the contract, but I never
saw the original.

Q. Where is the original to your knowledge ?

A. The original — I don't know that I could
say definitely, but I think it is in the hands of the
Katalla Company. That is my impression, how-
ever, only. I don't know.

Q. In your dealings and in the dealings of the
executor of Heney 's estate with the Katalla Com-
pany in reference to the matters specified in that
contract that copy which you hold in your hand —
what has that been taken to be between both you
and the Katalla Company?

Mr. Geayes: I object to that as irrelevant, im-
material and incompetent. It is getting at the same
thing in a round-about way.

The CorET: If it can be shown that the Ka-
talla Company has recognized this as a copy of the
contract I think it is material, but the question is
too broad and I will sustain the objection.

Q. (Mr. Lund). You have heard the matter
discussed, Mr. McCord, now tell what you know —
what can you say with reference to it. You know
more about the matter of getting at this thing than
I do. Tell us what you can, Mr. McCord?

Me. Gea\^s: Do you want to associate him
with you in this case?

Me. Lund: Go ahead.

Me. Geaves: I think that I have a right to
have a question asked of a witness so that I can
object to it.

Q. (Mr. Lund). Can you state, Mr. McCord,
that the paper which you hold in your hands — the
provisions in that — the provisions in that paper —
the agreements made in that paper have been recog-
nized by the Katalla Company, or the Katalla Com-
pany's attorneys as the contract between the Ka-
talla Company and Heney in your dealings with
the Katalla Company?

Mr. Geaves: I object to that upon the ground
the question is incompetent and the evidence called
for is incompetent.

The Couet: The question calls for the opin-
ion of Mr. McCord on that subject as to what has
been recognized. What would amount to a recog-
nition is a matter on which men would differ very
much. If tliere is any evidence showing that any

17

agent of the company has seen this copy of the
contract and said it is all right, then, perhaps it
might be shown. I will sustain the objection.

Q. (Mr. Lund). Has any of the attorneys for
the Katalla Company or any of the officers of the
Katalla Company seen that contract or that copy
which you have and recognized it and acknowledged
it as being the contract in question?

Mr. Graves: I object to that. The attorneys
or any officer is not able to bind this company unless
it is shown that it is some one who is capable of
speaking for the company.

The Court: I will sustain the objection to so
much of the question as relates to the attorneys, but
as to so much as relates to the officers I will overrule
the objection.

A. I will have to ask somebody a question. T
do not know who the officers of the Katalla Com-
pany are. Mr. Young or Mr. Youngs — if Mr.
Youngs is an officer of the Katalla Company — I will
have to know, your honor, before I can answer the
question.

Mr. Lund: Do you know whether that is a
fact?

Mr. Graves: My understanding is that he is
not — that there are no officers of the Katalla Com-
pany in Seattle. I cannot state that definitely, but
that is my belief.

A. I can state — I don't want to volunteer any-
thing— but I can state that if Youngs was, I could
state that I talked with him.

Q. State what your dealings have been with
Mr. Youngs?

18

A. I don't know whether he is an officer or not.

Mr. GrEAYES: I object unless the witness laiows.

A. I am not able to state whether Youngs is
or not.

The Court : The court cannot take any judi-
cial notice of Mr. Youngs' authority.

Q. (Mr. Lund). I will ask you Mr. McCord,
if you will tell us in what respect you have dealt
with Mr. Youngs?

A. Well I have discussed with Mr. Youngs the
relative rights of the M. J. Heney estate and the
Katalla Company under this contract, as to certain
phases of the contract. The discussion which T
had was with Mr. Bogle and Mr. Youngs and Mr.
Hawkins. I don't know whether those men are
officers of the company or any of them, I can't say,
but they discussed the matter with me.

Q. Mr. Bogle is one of the attorneys of record
in this case. You mean Mr. Bogle of Bogle, Mer-
ritt & Bogle?

A. Yes, Mr. W. H. Bogle, yes.

Q. In what capacity was Mr. Youngs, appar-
ently, acting at the time?

A. Well we had a dispute over a certain clause
in this contract as to certain charges for freight, or
failure to carry freight up the river, and we used
this copy of the contract in discussing it, and that
is all I know, but I don't know whether Mr. Youngs
— I don't know what his capacity was.

Q. And what position did Mr. Youngs take in
reference to that being a true copy of the original
contract? * * *

19

A. Well, we — Mr. Shields, who was in the em-
ploy of the Heney estate — of M. J. Heney during
his lifetime in the construction of the road — and
myself went over to Mr. Youngs' office about three
weeks before Christmas, as I remember the date — I
am not positive — to discuss certain features of this
contract and I had this copy with me, and we had
occasion to refer to the clauses of the contract and
I passed it over and Mr. Youngs examined that con-
tract and Mr. Bogle, and I read parts of it, and
from that we based our discussion as to the relative
rights of the parties as to that feature that we were
discussing. * * *

Q. Now, Mr. McCord, I will ask you if you
recollect that I spoke to you about that contract
some time ago?

A. Yes, you did.

Q. And that you told me at the time that you
or Siegley had the contract for the construction of
the road?

A. That was the contract that I thought we had.

Q. You thought it was the original, didn't you,
at the time you spoke to me?

A. Yes, I supposed that was the original — I
didn't have it in mind when you were talking to me,
but I supposed it was the original, and I felt so
sure it was the original that today, since I was here
this morning, I went through all the papers in con-
nection with the Heney estate in my office thinking
that perhaps the original was there, but it was not.

Q. It was not there?

A. No sir — at least I could not find it." (Rec.
91-96.)

20

J, H. Young, referred to by McCord as Youngs,
was thereupon brought into court under subpoena,
and the following occurred:

''Q. (Mr. Lund). You live in Seattle?

A. Yes.

Q. Engaged in what work?

A. I am president of the Alaska Steamship
Company.

Q. And do you remember having a conference
with Mr. McCord some few weeks or months ago
in reference to the contract between Mr. Heney and
the Katalla Company as to the construction of the
Copper River road?

A. Yes.

Q. Where did that conference take place?

A. In my office.

Q. Whom did you represent?

A. The Copper River & Northwestern Railroad.

Q. Was that contract between Heney and the
Copper River & Northwestern Railroad?

A. No sir.

Q. I will show you a paper here marked ^* Ex-
hibit A, refused," and I will ask you if you have
ever seen that before (showing) ?

A. I don't know that I ever saw this copy be-
fore. Not that I know of.

Q. Have you seen the original of that?

A. No sir, T never saw the original.

21

Q. You never saw the original contract between
the Katalla Company and Heney for the construc-
tion of that road ?

A. No sir.

Q. Now the conference between you and Mr.
McCord was in reference to that contract, wasn't it?

A. Yes.

Q. Is the CoDper River & Northwestern Rail-
road a party to that contract?

A. As I understand, no; I don't think it is — it
was not — it doesn't say so.

Q. It is not a party to that contract?

A. No sir.

Q. Had you had any connections with the Ka-
talla Company at any time?

A. Not officially, no sir.

Q. Not officially?

A. No sir.

Q. What was the matter or the substance of
the matter considered by you and Mr. McCord —
was it in reference to that contract — wasn't it?

A. Yes.

Q. Now, tell us how the Copper River & North-
western Railroad came to have any interest in that
contract which they are not a party to?

A. The Copper River & Northwestern Railroad
engaged the Katalla Company to build a railroad
for it, upon which it was to pay so much money
on the cost of the road — they were to pay the cost
and a certain percentage for the building of that
railroad. Charges are entered into there by Heney,

22

the contractor, which would finally revert to the
Copper Eiver & Northwestern Railroad Company,
if allowed. I was negotiating with Mr. McCord as
to the outcome of these charges — as to how those
charges should be assessed.

Q. And you had no instructions and had no
previous conference with any of the officers of the
Katalla Company in reference to the matter "?

A. No sir.

Q. The Katalla Company —

A. (Continuing) I will modify that. I would
like to modify that, if the court please. I had a
talk with Mr. Hawkins, who was the chief engineer
of the Katalla Company.

Q. And he is so now?

A. No sir, not now.

Q. Has the Katalla Company got any officers
here in the citv now?

A. None that I know of, excepting an assistant
secretary and treasurer.

Q. And who is he?

A. Mr. McMasters.

Q. (By a Juror). Do I understand that you
did not represent the Katalla Company in any sense
at that conference?

A. No sir." (Rec. 131-133.)

Heney's copy of the contract was marked for
identification, ^Tiff's Ex. A," and offered in evi-
dence, but rejected. It was not incorporated in the

23

bill of exceptions, but certified to this court as an
original exhibit offered and rejected.

Having failed to introduce the contract in evi-
dence, plaintiff called Murchison, Heney's superin-
tendent, and although an adverse witness, he testi-
fied as follows:

^*Q. In 1910 what work were you engaged in?

A. On the construction of the Copper River &
Northwestern Railroad.

Q. What position did you hold ?

A. I was superintendent for the contractor.

Q. Who was the contractor?

A. M. J. Heney.

Q. Who was the contractees — the one that let
the contract to Mr. Heney — from whom did Heney
have a contract?

A. Prom the Katalla Company, I believe.

Q. Who supplied the explosives that were used
on the construction of the road?

A. So far as I know, the Katalla Company.
Q. And do you know where Section 123 was?
A. Mile 123.
Q. Where was that?

A. It was on the line of the road, 123 miles
from Cordova.

Q. What was the nature of the construction
work going on there?

24

A. Rock work and tunnel work.

Q. In May, 1910, what was the nature of the
work going on there?

A. General construction work.

Q. Rock and tunnel work?

A. Yes.

Q. In that tunnel work and rock work were
explosives used?

A. Yes sir, they had to be.

Q. And who had supplied those explosives?

A. How do you mean now?

Q. I mean who supplied the explosives that
were used there at that time?

A. They were, the explosives — oh, the explo-
sives were all gotten from the Katalla Company as
far as I know.

CROSS-EXAMINATION.

Q. (By Mr. Graves). You say you were super-
intendent for M. J. Heney?

A. Yes.

Q. Were you in Alaska at that time?

A. Yes, I was.

Q. And M. J. Heney was the man who was
contracting and building the road?

A. As far as I understand, yes.

Q. And Heney purchased his powder from the
Katalla Company?

A. Well, not exactly.

25

Q. How's that?

A. I don't understand it just that way. They
were to have furnished all the powder for the con-
struction.

Q. All that you know about it is that Heney
furnished the powder to those section men, didn't
he?

A. It was after the second agreement, I believe,
with the Katalla Company.

Q. After the second agreement, Heney furnished
the powder to the stationmen?

A. Yes.

Q. And that was true in the spring of 1910?

A. Yes, that is on station work.

Mr. Graves: That is all."

RE-DIRECT EXAMINATION.

Q. (By Mr. Lund). Who furnished the powder
that was used by these men at the time?

A. Well, it was furnished through Mr. Heney
from the Katalla Company.

Q. It was furnished through Heney from the
Katalla Company?

A. Yes.

Q. Under what arrangement between them, so
far as you know?

A. There was a selling price set by the Katalla
Company.

Q. If the contract should appear to provide
otherwise, then you are mistaken as to that arrange-
ment, are you not?

26

A. I don't understand you.

Q. I beg pardon.

A. I didn't quite get that question.

Q. What do you know about it yourself, per-
sonally ?

A. Nothing, excepting as we carried along with
the work and the supply of powder from time to
time.

Q. Do you know personally under what ar-
rangement the powder was furnished to these sta-
tionmen?

A. They were to pay a certain price for the
powder that they were using.

Q. Where did the powder come from?

The Court : I think he answered that several
times.

A. We received it from the Katalla Company.

Q. I want to know what the arrangement was
between Mr. Heney and the Katalla Company as to
that powder.

Mr. Graves: I object to that on the ground
that it appears that there was a contract between
the parties and that is the best evidence.

The Court: It appears that there was a con-
tract and the contract will be the best evidence.

Q. (By IJ^r. Graves). Without reference to
what the contract was, the Katalla Company had
certain material in Alaska, didn't it?

A. Yes.

Q. Heney was the contractor?

27

A. Yes.

Q. And this work was let to stationmen along
at different places'?

A. Yes.

Q. And Heney had a contract of some kind
with the Katalla Company and then he had a con-
tract with each one of the stationmen for the work ?

A. Yes.

Mr. Lund: I want to ask one more question:

Q. What, if any, knowledge did you have as to
any defect in the dynamite as it was furnished to
men upon that particular station?

A. I didn't know whether — I didn't have any
knowledge that there were any." (Rec. 69-72.)

Being recalled, he testified:

^^Q. (Mr. Lund). As I remember, Mr. Murchi-
son, you were the superintendent in charge for
Mr. Heney up there?

A. Yes, I was.

Q. At this time, in the spring of 1910, where
was Mr. Heney ?

A. In California.

Q. You represented Mr. Heney?

A. Yes.

Q. And I think I asked you, but I am not sure,
and I will ask you now again, for what concern was
Heney constructing the road?

A. For the Katalla Company.

Q. And you remember station 123?

28

A. Mile 123 ?

Q. That was out from Tiekill how far?

A. Twenty-three miles or twenty-two miles.

Q. That was part of the road that Heney was
constructing for the Katalla Company?

A. Yes.

Q. And when was that work on station 123 com-
menced ?

A. In January of that year, January or Feb-
ruary of that year.

Q. And when was the supply of powder or dy-
namite or explosives sent in there?

A. I believe we began freighting up there about
the last of January.

Q. I will ask you if you didn't make the state-
ment, to refresh your memory, that that dynamite
was sent up in April — didn't you make that state-
ment?

A. Which dynamite?

Q. The dynamite that was used at station 123?

A. Well, yes, we sent some up in April and
some in March and some in February.

Q. And that which you sent to station 123 —

A. During those months we supplied powder to
them at those different times. * * *

Q. Where did you get the explosives that you
sent in there?

A. We got them from the Katalla Company.

Q. Where?

29

A. At Tiekill.

Q. How did you send them in?

A. With teams.

Q. And how long were they in your possession ?

A. While they were in transit from Tiekill to
the different work along the line.

Q. Prom Tiekill to 123 is how far?

A. About twenty-two miles.

Q. How long would the explosives be in your
possession while they were being transported that
distance ?

A. Probably about five or six hours or eight
hours sometimes.

Q. And while they were in your possession were
they exposed in any way to the weather or any
condition which would tend to render them danger-
ous?

A. I think not.

Q. I asked you yesterday if you knew there
was anything wrong with the dynamite when you
took it and sent it in; I will ask you now if you
know how old it was?

A. No." (Rec. 127-129.)

Prom the foregoing it positively appears that
Heney was building the road for the Katalla Com-
pany.

^*Q. I think I asked you, but I am not sure,
and I will ask you now again, for what concern was
Heney constructing the road?

30

A. For the Katalla Company." (Rec. 12.)

That the Katalla Company, under its contract
with Heney, furnished the dynamite used by the
men, who did the actual construction work, and that
the d;\Tiamite was delivered by the Katalla Company
to Henev at Tiekill, twentv-two miles from station
123, and at once delivered by him to the men. The
exact terms of the contract are not shown, for piain-
tiff in error refused to inform the court of it. While
it is claimed that it had not had time to produce
the contract, this action had been pending for more
than one year at the time of the trial, and if the
terms of the contract had in any way favored de-
fendant's contention, I believe it would have been
produced. But whatever the terms of the contract
was, the dynamite was furnished by virtue of the
contract.

^'Q. I want to know what the arrangement was
between Heney and the Katalla Company as to
that powder?

Mr. Graves: I object to that on the ground that
it appears there was a contract between the parties
and that is the best evidence.

The Coitrt: It appears that there was a con-
tract and the contract will be the best evidence."
(Rec. 72.)

Now, then, here is my cont(^ntion : It being im-
disputed that Heney was ])uilding the road for the

31

Katalla Company, and that the Katalla Company
furnished the dynamite for the use of the men doing
the actual construction work under its contract with
Heney, whatever the terms were, it was the com-
pany's duty, both under the law of the land and
common humanity, to use reasonable care to see that
the dynamite furnished was not extra hazardous or
defective.

In Coughlin vs. The Rheola, 19 Fed. 926, the
syllabus reads:

^^A stevedore employed by another, who has
contracted to unload a vessel, can recover for in-
juries sustained by the defective appliances fur-
nished him by the vessel, upon the same evidence
that would enable his employer to recover. Though
there is no privity of contract between the ship
owners and him, they were under the same obliga-
tion to him as they w^ere to his employer. What
would be negligence to one would be negligence to
the other."

In the opinion the court says:

' ' The libelant was performing a service in which
the ship owners had an interest, and which they con-
templated would be performed by the use of appli-
ances which they had agreed to provide. They were
under the same obligation to him not to expose him
to unnecessary danger that they were under to the
master stevedore, his employer. There was no ex-
press contract obligation on their part to either to
provide safe and suitable appliances, but they were
under an implied duty to each, and the measure of

32

duty to each was the same. What would be negli-
gence towards one would be towards the other.
Couglitry vs. Glohe Co,, 56 N. Y. 124; Mulchey vs.
Methodist Society, 125 Mass. 487. The implied
obligation on the part of one who is to provide
machinery or means by which a given service is to
be performed by another, is to use proper care and
diligence to see that such instrumentalities are safe
and suitable for that purpose. ^It is the duty of an
employer inviting employes to use his structures
and machinery to use proper care and diligence
to make such structures and machinery fit for use.'
Whart. Neg., 211. If he knows, or by the use of
due care might have known, that they were insuf-
ficient, he fails in his duty. This doctrine is cited
with approval in Hough vs. Ry. Co., 100 U. S. 220.
Due care or ordinary care implies the use of such
vigilance as is proportional to the danger to be
avoided, judged by the standard of common pru-
dence and experience. Applying this test here,
where, if the appliance to be used were defective,
serious casualties were to be apprehended, it was
the duty of the master of the steamer to exercise
a corresponding vigilance to provide against them."

In the case of Gerrity Bark, 2 Fed. 241, the
court says: *'To be sure, the libelant was not di-
rectly employed by the shipowner, and it may be
truly said that no relation by contract existed be-
tween the shipowner and the libelant. But the
libelant was trimming the shipowner's ship. He
was doing what was necessary to be done to enable
the ship to carry the cargo in safety, and the reason
why he was so employed was because the ship-
owner had, by a contract with the charterer, in-
directly provided for the performance of this serv-
ice.

33

^* There was a relation between the shipowner
and the libelant arising, not out of the mere pres-
ence of the libelant on board the ship, but out of
the service he was then engaged in performing
the necessity of that service to the shipowner, and
the circumstances of the libelant's employment to
perform that service. The libelant had, therefore,
a right to be where he was ; and it follows that there
was a duty on the part of the owner to see to it
that the dunnage and plank stoved above him were
so secured as to prevent it falling upon him of its
own weight.'' (Quoted from page 246.)

See also the following cases:

*^ Where the employer undertakes to furnish
the employes of an independent contractor some of
the instrumentalities for executing the required
work, he must exercise reasonable care to provide
such instrumentalities as will be reasonably safe."
Green vs. Sansom, 25 So. 332 ; 41 Fla. 94.

^^An owner of a building is liable to bricklayers
injured by defects in a scaffold built for them by
carpenters in the employ of the owner." Chicago
A. E, Co. vs. Scanlan, 48 N. E. 826.

'^ Where the owner of a logging railroad fur-
nished an independent contractor a locomotive not
equipped with a spark arrester, which in passing
plaintiff's residence threw sparks igniting the roof
of the house, the owner of the railroad is liable for
the inju'ry." Brady vs. Jay, 36 So. 132; 111 La.
1071.

^^A railroad corporation made a contract with
a person to build a culvert alongside its railroad and
furnished a derrick for use in the work, wiiich fell,
in consequence of a defect existing when the derrick
was delivered to the contractor. Held, that the cor-

34

poration was liable for injuries occasioned thereby
to a third person." Cordon vs. Eastman R, Co., 135
Mass. 195.

^^An elevator company which, for compensa-
tion, furnishes a steam shovel and appliances to one
desiring to unload a boat load of grain into its ele-
vator, and a man to see that they are put up right,
having negligently furnished a defective rope in the
tackle which breaks, letting a block fall on one em-
ployed in the unloading, is liable therefor." Con-
nors vs. Great Northern Elevator Co., 72 N. E.
1140; 180 N. Y. 509.

See also:

Johnson vs. Spear (Mich.), 42 N. W. 1092.

Fell vs. Rich Hill Coal Min. Co., 23 Mo. App.
216.

Was the Dynamite Furnished by Plaintiff in
Error Extra Hazardous or Defective?

That is not a question of law but of fact for the
jury, and the jury's finding is final, if supported by
any evidence. Plaintiff had been employed only
two days and a half when the injury occurred, and
had not seen the dynamite and had nothing to do
with it. He said:

**Q. (Mr. Lund) At the time you came there
on the job, Mr. Johnson, at section 123, and from
the time you commenced to work until the day of the
explosion, what did you have to do with or did you
handle any dynamite there?

A. No.

35

Q. Did you see the dynamite?

A. No.

Q. Did you at any time know there was any
defect in it?

A. I didn't know — I didn't see the dynamite,
only that day I seen the box that Riley carried in."
(Rec. 67.)

But Fred Johnson and Herbert Carson had
seen the dynamite and testified to its condition and
appearance. Mr. Carson said:

^'Q. What was the date on the powder?
A. The date on the cases was May, 1907. * * *
Q. And this was May, 1910?
A. Yes.

Q. — that you were using it? * ^ *
A. Yes.

Q. I will ask you now to state what was the
appearance of the dynamite which you saw in the
powder magazine?

A. Well, some of this powder appeared to be
bleached, and in places where I saw the sticks
broken it looked discolored.

Q. And what as to dryness or moisture ?

A. Well, it appeared to be moist — very moist,
some of it on the outside.

Q. Outside of the wrapper?

A. Yes.

36

Q. What was the nature of the moisture as to
whether it was watery moisture or oily moisture ?

A. It appeared to be an oily substance." (Eec.
78-79.)

Fred Johnson testified:

**Q. Did you see the dynamite that was used
there at the camp before the explosion?

* * ^

A. Yes, I seen some of it, yes.

Q. And did you see the date stamped on the
dynamite ?

A. Yes, I see the stamp.

Q. What was the date and the stamp on it?

A. There was a twentv and a fifteen — 15th of
May, 1907." (Eec. 113.)

John A. Johnson came on the job two days
after the explosion (Rec. 117-118). The same dyna-
mite was in the magazine on the station when he
came. None had been used in the meantime and no
new dynamite had come in (Rec. 113, 114). He said:

**Q. Did you see the dynamite that was in the
powder house?

A. I saw some of it.

Q. What was its condition?

A. Well, it was pretty bad looking.

Q. In what way did it look?

A. It looked — tlio papers were yellow on the
outside and spotted.

37

Q. Was there any stamp or date on it ?

A. Yes, sir.

Q. What was the date?

A. 15th of May, 1907.

Q. And where was that stamp?

A. On the side of the paper.

Q. On the dynamite stick?

A. On every stick, yes." (Rec. 118.)

The jury having found the issues for the plain-
tiff, as far as the inquiry in this court is concerned,
it is an established fact that the dynamite furnished
by defendant for use on this station was nearly
three j^ears old, was spotted and discolored and the
wrappers covered with an oily substance. That is
particularly so in this case, where defendant stood
mute and offered no evidence, although the evidence
showed that it had a resident engineer on the place
who inspected the dynamite, and defendant's agents
must have known where it came from, where it had
been kept during the three years, and how it had
been kept.

Having established the age of the dynamite and
its appearance, Mr. Laucks, a chemist and mining
engineer, was called as an expert, and testified that
dynamite consists of nitro-glycerine mixed with

38

some absorbent substance, such as wood pulp, and
that the nitro-glycerine is the explosive part. He
said:

'^Q. What is the purpose of mixing the nitro-
glycerine with the absorbent?

A. The purpose is to render it safe to handle.
That is, pure nitro-glycerine is a very hard sub-
stance to handle with safety and to ship any dis-
tance, but when it is absorbed by some inert ma-
terial and absorbed by some powder it becomes
much more safe to handle and to ship about the
country and so on.

Q. What can you say as to whether nitro-glycer-
ine mixed in that way with some other substance in a
solid form is less susceptible to shock causing ex-
plosion than in its pure state?

A. It is much less susceptible, yes.

Q. How does time affect this mixture, Mr.
Laucks ?

A. Well, time affects it generally because the
condition that affects nitro-glycerine. The longer
a time it has been stored, the more time those condi-
tions have to act on the nitro-glycerine. To make
my point clear, you take, for instance, the case of
moisture; in a moist climate dynamite has a ten-
dency to take up moisture and to replace nitro-
glycerine. Now the longer that goes on — the longer
it has been stored in a moist climate, of course the
more that effect is pronounced.

Q. And what is the result of that?

A. Well, the result of it is that the dynamite
that has been stored for some time in a moist at-
mosphere, the nitro-glycerine comes to the surface,

39

either underneath the wrapper or gets through the
wrapper and collects in drops, or sweats, as the
miners call it, and in that condition it is very dan-
gerous, because you have then free drops of nitro-
glycerine there, and it is a well known fact that it
is a great deal more dangerous in that condition and
that a great many accidents happen due to the
thawing and one thing and another.

Q. What can you say as to whether dynamite
two or more years of age is reasonably safe to han-
dle?

A. Well, that depends a great deal upon how it
has been stored and the precautions that have been
taken in storing it, but in most cases I should say
that I would hesitate to use dynamite that was two
years old unless I knew exactly how it had been
stored and all its past history.

Q. State whether or not an inspection of the
dynamite by a person understanding it will — per-
sons understanding such things — ^will give informa-
tion as to its condition?

A. It will, yes.

Q. State whether or not it would be reasonably
safe to give out for use dynamite two years old or
more without an inspection? * * *

A. I don't think it would be reasonably safe. I
would not do it myself, and I don't believe it would
be safe.

Q. If it appears that the wrapper of the d^ma-
mite is moist, with an oily moisture, what does that
indicate, Mr. Laucks?

A. Well, I suppose by oily moisture there you
mean an oily substance or an oil}^ liquid ?

Q. Yes.

40

A. It most certainly indicates nitro-glycerine.
At least, from your question it would indicate nitro-
glycerine, because that is the only thing in dynamite
that is of an oily nature." (Rec. 100, 101.)

Plaintiff in error insists that the dynamite
must have been safe, because no accident had hap-
pened in its use before, and because some remain-
ing sticks in the box was left in the debris unex-
ploded. The explosion took effect in the bottom of
the hole and broke the rock and the men at the
mouth of the hole were not killed (Rec. 89). The
expert explained it as follows:

**Q. Does dynamite sometimes get to such a
state that it won't explode at all?

A. It does when it is frozen.

Q. If those remaining sticks in the box were
frozen they would not be liable to explode by the
explosion in the hole, would they?

A. Dynamite that is frozen is very hard to
explode.

Q. Assuming that the box was not as stated by
counsel in front of the hole, but that it was along-
side of the hole and the explosion took place in the
hole, the force of the explosion taking effect away
down at the bottom of the hole and loosening the
rock, and that two men in front of the hole that
were doing the loading were not killed, what would
you say as to why that powder or dynamite in the
box was not exploded?

41

A. Well, there are several possibilities there.
One that it is frozen and the other that it is good
dynamite and got the fnll force of the blow,
(should be: did not get the full force of the blow),
and the other is that it did not get the full force
of the blow in such a way that it would explode it.
What I mean is to set off an explosion requires a
certain kind, with good dynamite requires a certain
kind of blow."

There was evidence from which the jury could
find that the powder remaining in the box did not
get the full force of the explosion.

'^Q. Where was Riley and his partner standing
in reference to that hole?

A. Right over the hole.

Q. Right at the opening of the hole?

A. Yes.

Q. And this hole blew up, struck them first and
then buried you?

A. No, sir, the weight of the muck came on to
us. That hole broke sideways, and it all came over
onto us fellows pretty near." (Rec. 90.)

''Q. Riley was not killed?

A. No, sir." (Rec. 89.)

It is insisted that the dynamite was good be-
cause no premature explosion had happened before
that time. The evidence is silent as to that, and it
is a mere assumption. In Connor vs. Great North-
ern Elevator Co.^ supra, a rope in a tackle broke

42

because defective. It is no argument to say that the
rope could not have been defective because it had
not broken before. Can a man charged with murder
defend himself on the ground that he had not killed
anyone before.

Against the positive testimony of the witnesses
that the dynamite was dated May 15, 1907, that the
wrappers were discolored and wet with an oily sub-
stance, indicating the presence of free nitro-glycer-
ine, plaintiff in error's argument might be ad-
dressed to the jury but not to the court, for it is a
question of fact and not of law.

Did the Extra Hazardous Condition of the Dyna-
mite Cause the Preiniature Explosion.

While defendant in error and another man were
engaged in drilling in the tunnel, one Riley and
another man came in to load a hole with dynamite,
and while they were so doing the explosion oc-
curred in the hole. Plaintiff in error insists in its
brief that they were ramming the dynamite down,
but that is not so. The evidence shows that they
were loading it with a wooden loading stick in the
ordinary and careful manner.

The witness Carson testified:

43

'^Q. And now tell us — tell the jury what you
saw of that explosion and how it took place and all
about it?

A. When we went to work in the tunnel, Mr.
Riley said he had a hole he had to blast before he
could drill his lifter. He was working in the head-
ing with us and we had started to drill our lifter
on the left-hand side and we were working at one
side and Mr. Riley came in with his partner and
the powder and the tamping stick to load his hole.

Q. Go ahead.

A. And I saw him start to load the hole and
was watching him, because we all had to go when he
had it prepared to blast. * * *

Q. Tell us how he loaded it?

A. He used his tamping stick and his partner
stood there and took the powder and split them —
split the sticks and handed it to Riley, and he took
his tamping stick and shoved them in the hole?

Q. What was the tamping stick made of?

A. Made of wood.

Q. What is the ordinary and proper method of
loading dynamite into a hole?

A, I never used any other method than that.

Q. And then what happened?

A. Well, I can't altogether recollect what hap-
pened. I got knocked out. Tlie explosion took
place and buried me and buried two other fellows,
and I got into a little cavity in the wall. After that
I don't really know what happen for some little
time." (Rec. 76, 77.)

44

This Tvitness used the term ^* powder," but he
meant dynamite.

*^Q. By powder you mean d}"iiamite?

A. Yes. Giant powder." (Rec. 77.)

Fred Johnson also saw the loading, and said :

*^Q. Can you tell us in anv way what you saw
about that explosion and how it came about?

A. Well, I saw them come in with the powder —
Riley came in with the open box of powder — I am
not sure, about three-quarters of a box — and he had
his partner in there, and he comes in with the box
of powder and the loading stick — a wooden stick.

Q. Who did you say came in there with the
powder and the loading stick?

A. Riley. * ^ ^

Q. And who was with him?

A. He had a box of powder on one side and a
loading stick — a wooden stick.

Q. The wooden loading stick in the other?

A. Yes.

Q. And what did he start to do?

A. His partner was in there and they started
to clear out the hole — the^^ cleared out a little dirt
out first.

Q. And in what manner were they loading — how
were they loading that hole ?

A. His partner was cutting up the powder with
a knife and he was behind and handed it to him,
and he put the powder in the liole and pushed it in
with the loading stick.

45

Q. And what happened — what took place?

A. Well, I was sitting looking like that, work-
ing with the drill, and he gave him one stick after
the other and put it in, and I looked, I know, as I
was turning the drill, and I see come a white light
come and the explosion come. As soon as the ex-
plosion come I don't know anything for the time.

Tv w w

' Q. Now at the time you saw that white flash
of the explosion, what was Riley doing with the
loading stick?

A. He was putting in powder in the hole with
the loading stick.

Q. Was he using any unusual force, or was he
doing it in the ordinary way?

A. Eh?

Q. You don't understand me — was Riley put-
ting it in with any unusual force — how was he load-
ing it?.

A. No, he was putting it in easy with the stick,
putting it in easy." (Rec. Ill, 112.)

Not much ramming about that. The expert,

Laucks, testified as to the proper method of loading

dynamite as follows:

^^Q. Tell the jury what is the ordinarv^, proper
and careful manner of loading dynamite into a hole
in a mine or tunnel ?

A. The proper manner is to slip (slit?) the
cartridges, shove them in the hole with a wooden
stick, using no metal whatever, and to press them
carefully and tamp them — not by hard blows but
by pressure alone." (Rec. 103.)

46

Plaintiff in error insist that the evidence failed
to show any defect in the powder and that the ex-
plosion was an unexplained mystery, and cites cases
to the effect that negligence is never presumed. T
don't question the law; the mistake is as to the
facts. Counsel repeats again and again that the
men were ramming the dynamite into the hole. It
is not a fair statement, because not only unsup
ported by the evidence but directly against the evi
dence. Mr. Carson, a miner of many years, de
scribed the method of loading employed by the men
at the time and declares: ^*I never used any other
system than that." (Rec. 77.)

Fred Johnson said that he was looking at the
men loading and saw the white flash of the ex-
plosion, and that they were shoving the dynamite in
easy and not using any force. * ^ * *^No, he was
putting it in easy with the stick, putting it in easy."

The method of loading being established, and
the appearance and age of the dynamite being estab-
lished, the expert was asked the following question
and gave the following answer:

*'Q. Now I will ask you this question: As-
sume as a fact that some men are working in a
tunnel on railroad construction ; and a ])ox of dyna-
mite is brought into the tunnel; with the sticks to

» 47

be used in loading the hole, and two men are load-
ing it, one man is cutting open the wrappers, and
the other is shoving the powder down into the hole
with a loading stick, consisting of w^ood, in the ordi-
nary manner of loading dynamite, and while in the
act of doing so an explosion is caused by the dyna-
mite in the hole. The dvnamite that is used in load-
ing, it being more than two years old, that the wrap-
pers are moist with an oily moisture, discolored —

what would you say was the cause of the explosion ?
* * * '

A. If the loading of the hole was properly done
— your question was if the hole was loaded in the
usual manner, I believe?

Q. By the use of the loading stick, one man
cutting up the powder and the other shoving it in
in the usual and careful manner of loading powder,
with the facts which I have assumed.

A. If the loading was properly done, I should
say that the probability was all in favor of — in fact,
there is nothing else — there is no other answer to
that question except that the dynamite was at
fault." * * ^

^'Q. What can you say, if there is anything
mysterious about dynamite, or something that no
one can understand — w^hat would you say as to that ?

A. No, there is nothing mysterious about dyna-
mite. * * *

Q. A premature or unexpected explosion of
dynamite will not occur without some cause?

A. Most certainlv, there must be some cause for
it." (Rec. 101-103.)'

The testimony not only showed that the dyna-
mite in the powder house was defective, but the

48

dynamite used by Riley at the time of the prema-
ture explosion was defective. Fred Johnson testi-
fied:

Q. You went back in again?

A. Yes, but I could not tell very well, but I was
there after they got the men out.

Q. And what did you see or notice in the muck ?

A. I picked up about eight or ten sticks, I can't
say exactly, of powder.

Q. Of dynamite*?

A. Yes.

Q. Where had those sticks of dynamite come
from, if you know ?

A. They was left in the box.

Q. From which the men were loading the hole?

A. Yes, where they wore loading the hole, they
were left in the box.

Q. What was the appearance of those sticks, as
to whether they were the same that you saw that
were in the box when they brought the box in ?

A. Yes. I saw the box when they brought them
in. * "^ "^

Q. What color were the wrappers on this
powder ?

A. Tt was spotted.'' (Rec 125, 126.)

40

What Was the Condition of the Dynamite When
It Left the Possession of the Katalla Com-
pany.

The argument of plaintiff in error, under this
subdivision, is based upon conjecture and unwar-
ranted assumptions. If the Katalla Company fur-
nished extra hazardous dynamite for the use of the
men building its road, it is both legally and morally
liable therefor, whether Heney or EoUin are dead or
alive. It says Heney 's superintendent discovered
no defect in the dynamite when he delivered it to
the men, and cites transcript of record, p. 72. Turn-
ing to the page cited, the court will see that all that
the superintendent said was that he did not know
that there was any defect in the dynamite, not that
there was not any. It nowhere appears that he
made any examination, for he had a right to believe
that the dynamite furnished was not extra hazard-
ous, in the absence of notice to the contrary. Again,
it is said the superintendent discovered nothing
wrong with it. How can counsel make such a state-
ment when there is not an iota of evidence that he
examined it.

While the superintendent said he shipped dyna-
mite to the particular station in April, March and

50

February, he admits that he had stated that it was
shipped up in April. But whether it was shipped
in in April or February, it was then over two years
old, and while in Heney's hands it was not exposed
to any condition which would render it extra hazard-
ous (Rec. 129). And while in the hands of the
station men at the station, it was properly stored
in a powder house constructed for that purpose.

John A. Johnson testified:

*^Q. What did you find they kept their dyna-
mite in?

A. They had a log cabin that was called the
powder house.

Q. Built of logs?

A. Built of logs and boards.

Q. In what way was it protected from the
weather ?

A. It was boards on the ends and canvas on the
top, boarded tight with a made door." (Rec. 178.)

Witness Carson said (Cross-examined) :

**Q. Where it got the water in it, whether it
laid out in the sun and got bleached, you don't
know ?

A. No.

Q. You don't know whether it got bleached
after it came into the possession of Sam Rollin or
not, do you?

51

A. Well, it could not very well get bleached
there.

Q. Well, you don't know anything about it, do
you?

A. It was —

Q. You don't know anything about it?

A. No, only what I saw there." (Rec. 80.)

It will be noticed that the witnesses said the
wrappers were wet with an oily substance. Counsel
in their brief ignores that statement and substitutes
water. Throughout its brief the argument is based
upon incorrect facts, and I can only refer the court
to the record.

Now, then, it is undisputed that whether the
dynamite was delivered in February or April it was
more than two years old then, a fact which alone
made it dangerous to handle, according to the ex-
pert, and while in transit it was not exposed, and
while in the station it was stored in the powder
house and '* could not very well have got bleached
there," according to the testimony. Such being the
testimon}^, it was competent for the jury to find
that the dynamite was old and extra hazardous
when it left the possession of the Katalla Company,
particularly because its officers and agents were
silent as the grave and refused to testify. The com-

52

pany had a resident engineer on the station, Mr.
Wingate (Eec. 129). He knew the condition of this
dynamite and directed the men not to use it any
more (Rec. 121). The company's agents must have
known the age of that powder, where it had been
during the two years and nine months before it was
given to the men to use and what its condition was,
for it could have been ascertained by an examination
(Rec. 101) by an experienced man. They knew of the
terrible accident at the time; the company was
charged in the complaint with negligence in furnish-
ing this dynamite more than a year before the trial,
and yet its every officer and agent stands mute and
has not a single word to offer in defense, and the
truth must have been known to them. Had the
dynamite been of proper age and condition and
without defects when it left the hands of the com-
pany, its officers, agents and resident engineer in
charge of that station should have know^n it, and
yet they stood absolutely silent.

In Aragon Coffee Co. vs. Fogers (Va.), 8 Am,
& Eng. Ann. Cases 623, the court says:

**In Bastrop State Bank vs. Levy, 106 La. 586,
31 So. Rep. 164, the court said:

'' Mudicial tribunals nre established to admin-
ister justice ])etween litigants, and the first and

53

more important step to that end is the ascertain-
ment of the truth of the controversies which come
before them. It is only when the truth is ascer-
tained that the law can be properly applied in the
just settlement of disputes. Litigants owe the duty
of assisting in every legitimate way in the elucida-
tion of the truth. When defendant can by his own
testimony throw light upon the matter at issue,
necessary to his defense and peculiarly within his
own knowledge if the fact exists, and fails to go
upon the witness stand, the presumption is raised,
and will be given effect to, that the fact does not
exist. '

^^A man of ordinary intelligence must know
that his failing to appear, w^hen he has a strong
motive to appear, would be evidence against him ;
if he relies upon his ability to disprove the motive
imputed he takes the risk, but he leaves the effect
of his conduct as a matter of evidence for the op-
posite side to go to the jury."

Did the Company Owe Any Duty to Johnson?

Under this caption plaintiff in error argues
that it had a right to furnish Heney with extra
hazardous dynamite. That it is not like selling
naptha labeled oil or a poisonous drug labeled as an
innocent one. That it had agreed to furnish dyna-
mite, and dynamite it furnished. Counsel overlooks
the fact that one receiving dynamite, whether by
purchase or otherwise, has a right to expect that
it is in ordinar^r condition and not extra hazardous,
in absence of notice to the contrarv. One who sells

54

dynamite containing free nitro-glycerine without
notice violates every rule of humane conduct.
Heney's superintendent did not know there was
anything wrong with the dynamite, hence he could
have had no notice. As to the duty to all the world,
see

Weiser vs. Holzman, 33 Wash. 87.

Beat vs. City, 28 Wash. 604.

Shiihert vs. Clark, 51 N. W. 1104.

Waters-Pierce Oil Co. vs. Desehns, 212 U. S.
159.

Proximate Cavse.

Plaintiff in error makes this statement in its

brief, p. 37:

*^The sticks of dynamite and the boxes in which
they are contained, if we are to believe the evidence
of the witnesses Carson and Johnson, had stamped
on them the date May 15th. 1907, and the wrappings
in which the dynamite was held were discolored and
covered with an oily moisture, which indicated the
exudation of nitro-glycerine. If these conditions
showed anything, they showed the age and deterio-
ration of the dynamite.

?>

The jury placed credence u]ion the testimony
of the witnesses named, and that should establish
the fact testified to, and that has been my contention
throughout, but in face of this admission, what
a])()ut counsel's prior argument that there was noth-

55

ing wrong with the powder and the premature ex-
plosion was an unexplained mystery. But now it is
argued that this condition was apparent and Heney
and the station men accepting it in this condition
the responsibility was shifted from the company to
the contractor. Against this contention it appears
that Heney did not know of the defect, and an or-
dinary laborer or miner is not charged with know-
ledge of the chemical properties of dynamite.

Mr. Carson said:

**Q. It is an indication of defective powder
though, is it?

A. Well, I am not an expert." (Eec. 90.)

In the case of Rillstone vs. Mather et al,, 44
Fed. 743, the court held that a laborer was not
chargeable with knowledge of the properties of dy-
namite. The court said:

^* Dangers which are not obvious to the common
understanding, but known only to those educated and
peculiarly informed upon the subject — (p. 744).

Part of the syllabus reads:

'^ There was conflicting evidence as to how the
accident was caused, and it might have been caused
by the way the plaintiff handled the caps. Held,
that it was proper to submit the case to the jury."

This case was carried to the United States Su-
preme Court, 156 U. S. 398, and it was affirmed.

Part of the syllabus reads:

56

^*In all occupations attended by great and un-
usual danger there must be used all appliances
readily attainable known to science for the pre-
vention of accidents, and neglect to provide such
readily attainable apj)liances is proof of culpable
neglect."

That being true as to use of dynamite in or-
dinary condition, human feeling revolts at the doc-
trine claimed by plaintiff in error that a contractee
had a right to furnish extra hazardous djTiamite to
the contractor for use by him on the works without
giving any notice or warning to the men. And that
the act of the contractor in receiving it and using it
^ insulated" the negligence of the contractor.

In the case of FJorsheim vs. DtiUaghan, 58 111.

App. 593, the syllabus reads:

*'A person cannot contract with another to do
an act which necessarily involves the doing of an
injury to a third person and escape liability under
a plea that there is an intervention of an indepen-
dent contractor."

In conclusion : Defendant in error is only one of
the sons of Martha, it is true, but he had a sound
body given to him by our common father, and with
that he supported himself and those depending upon
him at the hardest manual labor. He has been de-
prived of it and suffered pain beyond words through
the grossest and most culpable negligence of the oflfi-

57

cers and agents of plaintiff in error. He went on the
work with a sound body; he returned to his wife
and children a cripple for life. What home com-
ing that was. I have seen so much heartbreaking
suffering by reason of the killing and crippling of
laborers, and, in my opinion it is in almost every
instance due to the fault of those in authority, and
often with indifference brought about by the vicious
system of liability insurance in vogue. While the
human soul, as Plato says, is a constant battle-
ground between good and evil, the court must always
be on the side of good and against evil, and if a per-
son will not do right, he should be made to do so,
for that is best even for him.

Respectfully submitted.

MARTIN J. LUND,
Attorney for Defendant in Error.

(Hxxtnxt (Hmxt nf KppmU

Wat tljp Ntntlj Cdtrtmt

E. L. CASEY,

Plaintiff in Error,

vs.

THE BARBER ASPHALT PAVING COMPANY,

a Corporation,

Defendant in Error.

®ransmpt ttf Scroti

Hp0tt Writ rtf Srrxir tn % Initeft g^tat^a itatrtrt (Harnt

for % ^aatrrn itatnrt nf Paalfmgtntt

g>iiutl}0rn SimfiWtt

ECEI VED

JUL 1 5 1912
F. D. MONCKTON,

^^ »MAg « .v-jtu«n jC 132603

r 0 Q IMA

No..

Oltrnttt Ol0«rt nf KppmlB

If at % Nintlj Ctrtuit

E. L. CASEY,

Plaintiff in Error,

vs.

THE BARBER ASPHALT PAVING COMPANY,

a Corporation,

Defendant in Error.

©ransrnpt of Swori

aji0tt Writ 0f Error tn % Htttoi »tatra Statrirt CUnurl

for tifj ?EaBt^m itatrfrt of MaBlftttgtnti

Btitxtiftvn Simfiuitt

•HAW * •0«OBN J6. 132603

INDEX.

Page.

Assignment of Errors 59

Attorneys, Names and Addresses of 1

Bond on Writ of Error 67

Bill of Exceptions 29

Bill of Exceptions, Order Extending Time 28

Certificate of Clerk State Court Attached to Com-
plaint 6

Certificate of Clerk U. S. District Court to Record 73

Certificate of Judge U. S. District Court to Original

Exhibits 71

Citation (Lodged Copy) 69

Complaint 2

Judgment on the Verdict 12

Judgment Notwithstanding the Verdict 27

Motion for Judgment Notwithstanding the Verdict- 14

Motion for Non-Suit 57

Motion for Directed Verdict 57

Names and Addresses of Attorneys of Record 1

Notice by Plaintiff to Defendant of Sustaining Injury 5
Opinion of Court on Motion for Judgment Notwith-
standing the Verdict 15

Order Extending Time for Preparing Bill of Ex-
ceptions 28

Order Granting Motion for Judgment Notwithstand-
ing the Verdict (In Bill of Exceptions) 58

Order Denying Motion for Non-Suit 57

Order Denying Motion for Directed Verdict 57

Order Settling and Allowing Bill of Exceptions 58

Order Allowing Petition for Writ of Error 64

11

Page.

Order to Send up Original Exhibits with Record 70

Petition for Writ of Error 61

Praecipe for Transcript of the Record 71

Reply 10

Record of Trial (Journal Entry) 13

TESTIMONY ON BEHALF OF PLAINTIFF.

Page.

E. L. Casey 30

Cross Examination 42

Re-Cross Examination 55

Trial, Record of 13

Verdict 11

Verdict (Journal Entry) 13

Verdict, Judgment on 12

Verdict, Judgment Notwithstanding 27

Verdict, Motion for Directed 57

Writ of Error (Lodged Copy) 65

In the District Court of the United States for the East-
ern District of Washington, Southern Division,
E. L. CASEY,

Plaintiff,
vs.
THE BARBER ASPHALT PAVING COMPANY,
a Corporation,

Defendant.
No. 268.
NAMES AND ADDRESSES OE ATTORNEYS OF

RECORD.
BENNETT & SINNOT, The Dalles, Oregon, and J.
G. THOMAS and W. A. TONER, Walla Walla,
Washington,

Attorneys for Plaintiff.
POST, AVERY & HIGGINS, Exchange National Bank

Building, Spokane, Washington, and
GOSE & GOSE, Walla Walla, Washington,

Attorneys for Defendant.

In the Superior Court of the State of Washington, for

Walla Walla County.
E. L. CASEY,

Plaintiff,
vs.
THE BARBER ASPHALT PAVING COMPANY,
a Corporation,

Defendant.
COMPLAINT.
Comes now the plaintiff, and complaining of defend-
ant, alleges :

2 E. L. Casey v.

I.

That said defendant is a corporation duly organized
and doing business in the State of Washington, and was
such corporation at all the times and dates hereinafter
mentioned, and as such corporation was engaged in the
transaction of business in the County of Walla Walla,
in the State of Washington, and in the business of mix-
ing, grinding and manufacturing asphalt paving and the
material therefor in the City of Walla Walla, in said
County and State.

II.

That on the 6th day of August, 1909, the said de-
fendant was operating a certain mill, factory and work-
shop in the City of Walla Walla, in said County and
State, for the purposes of mixing, grinding and man-
ufacturing Asphalt paving, and was at said time en-
gaged in the mixing, grinding and manufacturing of
said paving at said place.

III.

That on said date and prior thereto the plaintiff was
an employee of the defendant, and was working under
the direction and authority of the defendant with, in, on,
around and about said mill, factory and workshop, and
in assisting in the operation thereof.

IV.

That prior to and at said time the defendant negli-
gently and carelessly and in violation of its duty to this
plaintiff, and to its other employees, and in violation of
the laws of the State of Washington, caused and per-
mitted a certain revolving shaft and coupling, which
was a part of the machinery of said mill, factory and

The Barber Asphalt Paving Company. 3

workshop, to be left insufficiently and entirely unguarded
and unprotected, and in such a condition that the em-
ployees of such mill, factory and workshop, including the
plaintiff, was constantly liable to come in contact with
said shaft and coupling while in the performance of
their duties ; and negligently and carelessly failed to pro-
vide reasonable or any safeguards therefor, although it
was entirely practicable to guard and protect the same,
and although the same could have been at said time, ef-
fectively and perfectly guarded with all due regard to
the ordinary use of such machinery and appliances, and
without in any way interfering with the ordinary use of
the same.

V.

- Plaintiff further alleges that said defendant at said
time and prior thereto, negligently and carelessly left
said machinery and said shaft and coupling in a defective
and dangerous condition, with a certain cotter pin un-
necessarily and dangerously projecting therefrom in
such a position so as to be likely to catch and injure em-
ployees working about the same, and that said defendant
totally and wholly and negligently and carelessly failed
to guard or protect said machinery and projecting cotter
pin or provide any reasonable safeguard to prevent the
plaintiff and other employees working about said mill
from being caught therein, although the same could
have been effectively guarded with due regard to the or-
dinary use of such machinery and appliances, and with-
out interfering in any way with such use, and although

4 E. L. Casey v.

the said plaintiff and other employees were liable to come
in contact with the said machinery in the performance of
their duties as aforesaid.

VI.

That by reason of the negligence and wrongful act of
the defendant in leaving said shaft and coupling in a
(dangerous and defective condition with the said cotter
pin projecting therefrom, as aforesaid, and by reason of
its negligence in failing to provide any safeguard there-
for, or to guard the same in any way, as aforesaid, the
plaintiff on said 6th day of August, 1909, while in the
performance of his duty as such employee of the de-
fendant in, around and about said mill, factory and work-
shop, and while engaged in the operation of the same and
in the manufacturing of Asphalt therein, as aforesaid,
was caught by said projecting pin and by said unguarded
shaft and coupling and was greatly bruised, mangled,
burned and injured in his body and person, and his bones
broken and his muscles torn, and whereby plaintiff has
suffered great physical and mental pain and agony, and
has been ever since incapacitated from performing his
ordinary work as a machinist, or any manual labor what-
ever, and will be so incapacitated for all time to come,
and whereby plaintiff has been crippled and disfigured,
and will be so permanently crippled and disfigured, and
has not been, and will not be able to enjoy the ordinary
comforts and pleasures of life, and whereby he has suf-
fered damages to the extent of Seven Thousand
Five Hundred Dollars ($7,500.00).

The Barber Asphalt Paving Company. 5

VII.

That on the 28th day of January, 1910, and within six
months from the occurrence of such injury, the plaintiff
duly served upon the defendant and gave to the defend-
ant, the following notice of the time, place and cause of
such injury, which notice was in writing and signed by
the person injured, to-wit: the plaintiff herein:

NOTICE:
To THE BARBER ASPHALT PAVING COM-
PANY:

You are hereby notified, that on the 6th day of August,
A. D. 1909, at the City of Walla Walla, County of Walla
Walla and State of Washington, E. L. Casey, the un-
dersigned, was injured while in your employ at and
about a certain mill, factory and workshop, being oper-
ated by you, at or near the intersection of Ninth and
May Streets in the said City of Walla Walla, for the
purpose of mixing, grinding and manufacturing Asphalt
Paving, for the construction of a pavement in said City ;
and that said injury was caused by the use of a dan-
gerous, defective, uncovered and unguarded coupling,
shaft and projecting pin and fastening upon said ma-
chine, by which the plaintiff, undersigned, was caught
by said shaft and coupling and was greatly bruised,
mangled, burned and injured and his bones broken and
muscles torn, for all of which injuries the undersigned
expects to hold you, the said company, responsible.

Dated this 25th day of January, A. D. 1910.

(Signed) E. L. CASEY.

WHEREFORE, the plaintiff prays judgment against
said defendant for said sum of Seven Thousand Five

6 E. L. Casey v.

Hundred Dollars, and for his costs and disbursements
made and expended herein.
J. G. THOMAS annd W. A. TONER and
BENNETT & SINNOTT,

Attorneys for Plaintiff.

State of Washington,
County of Walla Walla, — ss.

I, E. L. Casey, being first duly sworn, do say on my
oath that I am the plaintiff above named; that the fore-
going complaint is true as I verily believe.

(Signed) E. L. CASEY.
Subscribed and sworn to before me this 29th day of
March, A. D. 1910.

(Signed) J. G. THOMAS,
Notary Public in and for the State of Washington, resid-
ing at Walla Walla.
Filed April 30th, 1910.

State of Washington,
County of Walla Walla, — ss.

I, James Williams, County Clerk of the County of
Walla Walla, State of Washington, and ex-officio Clerk
of the Superior Court of the State of Washington for
Walla Walla County, do hereby certify that the within
and foregoing are full, true and correct copies of the
originals, and of the whole thereof, as the same are now
on file and of record in the within entitled action, in my
office and custody, and said cause has been ordered re-
moved to the Circuit Court of the United States for the
Eastern District of Washington.

The Barber A\sphalt Paving Company. 7

IN TESTIMONY WHEREOF, I have hereunto set
my hand and affixed the seal of Said Superior Court this
3rd day of May, 1910.

(Seal) JAMES WILLIAMS,

County Clerk and ex-ofUcio Clerk of the Superior Court,

Endorsements :

Portion of Transcript. Complaint. Filed June 4-10.
F. C. Nash, Clerk. By E. E. Wright, Dep,

In the Circuit Court of the United States, for the East-
ern District of Washington, Southern Division.
E. L. CASEY,

Plaintiff,
vs.
THE BARBER ASPHALT PAVING COMPANY,
a Corporation,

Defendant.
No. 268.
ANSWER.
Comes now the defendant and for answer to plain-
tiff's complaint herein,

1. Denies each and every allegation and thing con-
tained in paragraph 1 in said complaint, except that it
is a corporation and is doing business in the State of
Washington.

2. Denies each and every allegation and thing con-
tained in paragraph 2 of said complaint, except that on
or about the 6th day of August, 1909, a portable ma-
chine or apparatus for mixing asphalt was used in so
doing in the City of Walla Walla, Washington.

3. Denies each and every allegation and thing con-
tained in paragraph 3 in said complaint, except that on

8 E. L. Casey v.

said last named date and prior thereto the plaintiff was
an employee of the defendant, working around and
about said asphalt mixing machine.

4. Denies each and every allegation and thing con-
tained in paragraph 4 in said complaint.

5. Denies each and every allegation and thing con-
tained in paragraph 5 of said complaint.

6. Denies each and every allegation and thing in
paragraph 6 of said complaint contained, except that de-
fendant is informed and believes that on or about the
said 6th day of August, 1909, that the plaintiff was in-
jured in and about said mixing machine and except
further the allegations therein as to the extent of plain-
tiff's alleged injuries, as to which allegations this de-
fendant denies any knowledge or information sufficient
to form a belief.

II.

For a further and affirmative defense herein the de-
fendant alleges that if the plaintiff was injured in the
manner alleged in his complaint and at the time therein
alleged such injury was caused and brought about by his
own carelessness and neglect and by reason of his con-
tributory negligence and not by reason of the careless-
ness or negligence of the defendant, or anyone for whose
acts the defendant is responsible.

III.

For a second and further affirmative defense herein
defendant alleges that in entering upon the employment
in which he was engaged at the time of said alleged acci-
dent, the plaintiff assumed as a part of said employment,

The Barber Asphalt Paving Company. 9

all of the risks and dangers incident thereto and it was
part of the considering entering into his contract of
employment with the defendant that he assume all risks
in and about his work in connection with said mixing
machine or apparatus.

WHEREFORE, because of the toregoing the defend-
ant prays that the plaintiff take nothing herein and that
it have its costs and disbursements herein incurred.
(Signed) T. P. & C. C. GOSE,
(Signed) POST, AVERY & HIGGINS,

Attorneys for Defendant.

State of Washington,
County of Spokane, — ss.

A. G. AVERY, being first duly sworn, on oath, de-
poses and says that he is one of the attorneys for the
defendant in the above entitled cause, and makes this
verification for and in its behalf because there is no officer
of said corporation within said judicial district; that he
has read the foregoing ANSWER, knows the contents
thereof and that the same is true as he verily believes.

(Signed) A. G. AVERY.
Subscribed and sworn to before me this 25th day of June,

1910.

(Signed) A. E. RUSSELL,
(Seal.)
Notary Public for the State of Washington, residing

at Spokane.
Endorsements : Service of the within answer admitted
this 28th day of June, 1910, at Walla Walla, Washing-
ton. W. A. Toner, one of the Attorneys for Plaintiff.
Filed July 5, 1910. F. C. Nash, Clerk. By E. E. Wright,
Deputy.

10 E, L. Casey v.

In the Circuit Court of the United States for the East-
ern District of Washington, Southern Division.

E. L. CASEY,

Plaintiff,
vs.

THE BARBER ASPHALT PAVING COMPANY,

a Corporation,

Defendant.
REPLY.
Comes now the plaintiff, and replying to the new mat-
ter in defendant's answer, denies and alleges :

L

Denies each and every allegation and thing contained
in Paragraph H of said affirmative answer.

n.

Replying to Paragraph HI of said affirmative answer,
plaintiff* denies each and every allegation and thing al-
leged in said paragraph.

in.

Replying to the whole of said affirmative answer,
the plaintiff denies each and every allegation thereof.

WHEREFORE, plaintiff prays judgment as in his
complaint.

J. G. THOMAS and W. A. TONER,
BENNETT & SINNOTT,

Attorneys for Plaintiff.

The Barber Asphalt Paving Company, 11

State of Washington,
County of Walla Walla,— ss.

I, E. L. Casey, being first duly sworn, say on my oath
that I am plaintiff above named, and that the foregoing
reply is true as I verily believe.

(Signed) E. L. CASEY.
Subscribed and sworn to before me this 12th day of

August, A. D. 1910.
(Seal) (Signed) J. G. THOMAS,

Notary Public in and for the State of Washington, re-
siding at Walla Walla.
Due and legal service of the foregoing Reply upon me
at Walla Walla, Washington, this 12th day of August,
1910, is hereby acknowledged.

(Signed) T. P. GOSE,
Of Attorneys for Defendant.
Endorsed :

REPLY— Filed August 18, 1910. F. C. Nash, Clerk.
By E. E. Wright, Deputy.

In the Circuit Court of the United States for the Dis-
trict of Washington, Southern Division.

E. L. CASEY,

vs.
BARBER ASPHALT COMPANY,
. a Corporation,

No. 268.
VERDICT.
We, the jury in the above entitled cause, find for the

12 E. L. Casey v.

plaintiff, and assess the amount of his damages at the
sum of Seventy Five Hundred Dollars.

(Signed) R. P. HILL,
( Endorsed. ) Foreman.

VERDICT.
Filed October 9th, 1911.

FRANK C. NASH, Clerk.
In the Circuit Court of the United States for the East-
ern District of Washington, Southern Division.
E. L. CASEY,

Plaintiff,
vs.
THE BARBER ASPHALT PAVING COMPANY,

Defendant.
Now on this day comes the plaintiff and moves for
a judgment on the verdict heretofore rendered and en-
tered in said cause; the plaintiff appearing by Thomas
& Toner, and A. S. Bennett, his attorneys, and the de-
fendant appearing by A. G. Avery and Gose & Gose, its
attorneys.

And thereupon it is ordered, adjudged and considered
that the plaintiff have and recover from the defendant
the sum of Seven Thousand Five Hundred ($7,500.00)
Dollars and his costs and disbursements made and ex-
pended herein, and that execution issue therefor, to all
of which the defendant excepts and the exception is al-
lowed.

Done this 9th day of Octboer, A. D. 1911.

( Signed) FRANK H. RUDKIN,

Judge.

The Barber Asphalt Paving Company. 13

Indorsements: Judgment. Filed October 9, 1911.

F. C. NASH, Clerk,
By E. E. WRIGHT, Deputy.

AND AFTERWARDS, to-wit: on the 9th day of
October, 1911, the same being the eighth day of the reg-
ular June, 191 1, term of said Court, Present : The Hon-
orable FRANK H. RUDKIN, United States District
Judge for the Eastern District of Washington, Presid-
ing, the following proceedings were had in said case,
to-wit :

In the District Court of the United States, Eastern Dis-
trict of Washington, Southern Division.
E. L. CASEY, Plaintiff,

vs.
BARBER ASPHALT PAVING COMPANY,
a Corporation,

Defendant.
No. 268.
RESUME AND CONCLUSION OF TRIAL AND
VERDICT AND MOTION FOR JUDGMENT

NOTWITHSTANDING THE VERDICT.
Now, at this day, comes the above named plaintiff and
his attorneys as of yesterday, and the above named de-
fendant by its attorneys as of yesterday, and the jury
impaneled herein being present and answering to their
names, the trial of this cause is resumed in the adducing
of rebuttal testimony on behalf of the plaintiff until the
close of all the testimony in the case. Whereupon the
jury, after hearing the arguments of respective counsel
and the instructions of the court, retired at 2:10 o'clock
P. M., under the charge of properly sworn officers of the

14 E, L. Casey v.

Court, to consider of their verdict. And subsequently, on
this same day, at 4:10 o'clock P. M., the said jury im-
paneled herein having heard the evidence adduced, the
arguments of counsel and the instructions of the court,
and having heretofore retired from the court room to
consider of their verdict, now come into court, and, after
answering to their names, all being present in their box,
present to the Court the following verdict, to-wit: "We,
the jury in the above entitled case, find for the plaintiff,
and assess the amount of his damages at the sum of
Seventy Five Hundred Dollars. R. P. Hill, Foreman,''
which verdict was received by the Court and ordered
filed, and the jury discharged from further consideration
of the case.

WHEREUPON, after the rendition of the above ver-
dict as aforesaid, A. G. Avery, Esquire, of counsel for
the defendant in the above-entitled case, moved the Court
for a judgment in its favor notwithstanding the verdict,
which motion is in words and figures following, to-wit:
"Grounds of Motion for a Judgment Notwithstand-
ing the Verdict.

1. That the testimony and evidence adduced in the
plaintiff's case did not, if true, constitute a cause of ac-
tion against the defendant and a verdict was not war-
ranted thereon.

2. The testimony adduced in the whole case shows
that the plaintiff was not entitled to a verdict.

3. The testimony adduced shows that as a matter of
law that the defendant is entitled to a verdict.

4. The evidence shows that the plaintiff was guilty
of contributory negligence.

The Barber Asphalt Paving Company, 15

5. The evidence shows that the risk as to such dan-
gers that brought about the plaintiff's injuries were as-
sumed by him when he entered defendant's employ.

6. The complaint does not state a cause of action
against the defendant."

(Signed) FRANK H. RUDKIN,

Judge,
Entered Circuit Court Journal, Volume 2 at page 173.

In the Circuit Court of the United States for the East-
ern District of Washington, Southern Division,
E. L. CASEY,

Plaintiif,
vs,
THE BARBER ASPHALT PAVING COMPANY.

Defendant.
No. 268.
OPINION.
Thomas & Toner and Bennett & Sinnett, for plaintiff.
Post, Every & Higgins and Gose & Gose, for de-
fendant.

RUDKIN, District Judge.

The defendant in this action is a corporation engaged
in the business of laying asphalt pavement in roads and
streets, as its name would indicate. In the prosecution
of its work it maintains and operates certain machinery
for the purpose of mixing, heating and preparing the
crushed rock, sand, cement and asphalt out of which the
pavement is made. This machinery is assembled on a
car which does not differ materially from the flat car in
common use. The plant consists of a mixer, a heater,
and elevators for hoisting the materials, and the whole

16 E. L. Casey v.

is operated by a forty horse power gasoline engine con-
nected up with the usual and customary cog wheels,
shaftings, and other mechanical devices. The entire ma-
chinery is stationed on the car except the elevators, which
extend to the ground beside the car. The six or eight
men employed about the plant while in operation stand
on platforms a few feet in width, constructed on each
side of the car even with its floors or base. There are
no sides to the car, no roof over it, except for the pro-
tection of parts of the machinery, and the whole cannot
be said to be a building or enclosure of any kind, char-
acter or description. The car is moved about from place
to place on the ordinary railroad tracks as required by
the convenience or necessities of the defendant in the
prosecution of its work. When desired for use at any
particular point a sidetrack is constructed from the main
track, the car is moved onto the sidetrack, and the tem-
porary track is then removed from behind it, until it
becomes necessary to return it to the main track for
transportation to some other point. The temporary side-
track is then replaced and connected up.

The foregoing is a brief but sufficiently accurate de-
scription of the plant or machinery in question for the
purposes of this opinion.

The plaintiff was employed by the defendant to work
around and about this machinery as an engineer in the
City of Walla Walla, and while so employed came in con-
tact with an unguarded coupling or shafting, and re-
ceived severe injuries to his person, for w^hich a recovery
is here sought. The defendant challenged the legal suf-
ficiency of the testimony to warrant a verdict against it,

The Barber Asphalt Paving Company. 17

first, by motion for a non-suit at the close of the plain-
tiff's testimony; second, by motion for a judgment in its
favor at the close of all the testimony, and now, after
verdict in favor of the plaintiff, by motion for judgment
notwithstanding the verdict. The sole question presented
by these several motions is this: Was this plant, ma-
chinery, or whatever we may style it, a factory, mill or
workshop, within the meaning of the factory act, found
in chapter eighty-four of the Washington Laws of 1905,
as amended by chapter two hundred and five of the laws
of 1907.

The titles of the several factory acts of this state have
been identical, viz.; "An act providing for the protec-
tion and health of employees in factories, mills or work-
shops, where machinery is used, etc.; and while it was
formerly held that the title formed no part of an act,
it is now well established in both England and the
United States that where the meaning of the body of
an act is doubtful reference may be had to the title to
remove the ambiguity or to supply an omission. This
is especially true where there is a constitutional require-
ment that the subject or object of the act must be ex-
pressed in the title.

36 Cyc. 1133
Cons, of Washington, Art. 19, Sec. 2.

We need not dwell longer on this subject, however,
for in the present instance the title and the body of the
act are harmonious and consistent throughout.

Thus, section one of the Act of 1905, as amended by
section one of the Act of 1907, declares, "That any per-

18 E. L, Casey v.

son, firm, corporation or association operating a factory,
mill or workshop where machinery is used shall provide
and maintain in use, * * ^ reasonable safeguards
for all * * * shafting, coupling, * * and ma-
chinery of other or similar description, which it is prac-
ticable to guard, and which can be effectively guarded
with due regard to the ordinary use of such machinery
and appliances, and the dangers to employees therefrom,
and with which the employees of any such factory, mill
or workshop are liable to come in contact while in the
performance of their duties. * * *'*

Section two of the Act of 1905 provides, that *'Every
factory, mill or workshop where machinery is used and
manual labor exercised by the way of trade for the pur-
poses of gain within an enclosed room * * * shall
be provided in each workroom thereof with good and
sufficient ventilation,'' etc.

Section three of the Act of 1905 provides that, "The
openings of all hoist-ways, hatch-ways, elevators and
well holes and stairways in factories, mills, workshops,
storehouses, warerooms or stores, shall be protected
where practicable, by good and sufficient trap-doors,
hatches, fences, gates or other safeguards," etc.

Section four of the Act of 1905, as amended by sec-
tion two of the Act of 1907, provides that it shall be the
duty of the Commissioner of Labor annually, and from
time to time, to examine all factories, mills, workshops,
warehouses, warerooms, stores and buildings, and ma-
chinery and appliances therein contained, to which the
provisions of the act are applicable.

The Barber Asphalt Paving Company. 19

Section five of the Act of 1905, as amended by sec-
tion three of the Act of 1907, provides, 'That any per-
son, firm, corporation or association carrying on business
to which the provisions of the act are appHcable, shall
have the right to make written request to the Commis-
sioner of Labor to inspect any factory, mill or workshop,
and the machinery therein used, and any storehouse,
wareroom or store, which said applicant is operating;

>fi -^ H« "

Section six of the act provides that the employee of
any person, firm, corporation or association shall notify
his employer of any defect in or failure to guard the ma-
chinery, appliances, ways, works, and plants, with which
or in and about which he is working, and that the em-
ployee may complain to the Commissioner of Labor of
any such defects or failure to guard such machinery.

Section seven of the Act of 1905, as amended by sec-
tion four of the Act of 1907, provides, that whenever
upon examination or re-examination of any factory, mill
or workshop, store or building, or the machinery or ap-
pliances therein to which the provisions of the act are
applicable, the property so examined and the machinery
and appliances therein, conform in the judgment of the
Commissioner of Labor to the requirements of the act,
he shall issue a certificate, etc. ; that a copy of the certi-
ficate shall be kept posted in a conspicuous place on every
floor of all factories, mills, workshops, warehouses,
warerooms or stores, to which the provisions of the act
are applicable, and that if the provisions of the act have
not been complied with, the Commissioner of Labor shall
notify the person operating the mill, factory or work-
shop of that fact.

20 E. L. Casey v.

It will thus be seen that the act speaks of employees
in factories, mills or workshops, and of employees of fac-
tories, mills and workshops ; of factories, mills or work •
shops and the machinery therein used or therein con-
tained, and of factories, mills and workshops, warehouses,
warerooms, stores and buildings. Such language leaves
little room for construction. The term ''factory'' has
been defined as follows :

*' 'Manufactory' and 'factory' are different forms of
the same word. 'Manufactory' has been defined as 'in a
house or place where anything is manufactured,' and
'factory' as a building, or collection of buildings, appro-
proiated to the manufacture of goods.' But a manufac-
tory is something more than a building. It includes not
only the building, but the machinery necessary to pro-
duce the particular goods manufactured and the engines
or other power necessary to propel such machinery. It
seems, however, that mechanical power and machinery
are not always essential to the existence of a factory. A
single factory may include several buildings. And fac-
tory is not synonymous with mill, the former being a gen-
eral term, while the latter is a specific term, and a fac-
tory may contain several mills. Various establishments
have been held to be factories or manufactories under
certain statutes, and the statutory meaning is sometimes
wider than the common definition."
26 Cyc. 530.

"Mill" is defined by Webster as "A common name for
various machines which produce a manufactured pro-
duct, or change the form of a raw material by the con-
tinuous repetition of some simple action; as a saw mill;
a stamp mill, etc."

The Barber Asphalt Paving Company. 21

Also as, "A building or collection of buildings with
machinery by which the processes of manufacture arecar-
ried on; as a cotton mill; a powder mill; a rolling millf'

The same authority defines "shop" as, "A small es-
tablishment, * * * Qj. building devoted to a partic-
ular line in a factory or large establishment, in which
mechanics or artisans work ; as a shoe shop ; a car shop ;
a machine shop/'

And "work shop" as "A shop where any manufacture
or handiwork is carried on."

The only one of these definitions that would or could
embrace the machinery in question is the definition some-
times given of a mill. The meaning of the word "mill,"
however, in this statute must be ascertained from the
context.

"In accordance with the maxim noscitur a sods, the
meaning of a word used in a statute must be construed
in connection with the words with which it is associated.
Where several words are connected by a copulative con-
junction, they are presumed to be of the same class, un-
less the contrary intention appears."
36Cyc. 1118.

When therefore, the word "mill" is used in connec-
tion with the words, "factory," "work shop," "ware-
house," "wareroom," "store" and "building" it can only
mean "a building or collection of buildings with machin-
ery by which the processes of manufacturing are car-
ried on."

A statute of New Jersey provides, "That the belting,
shafting, gearing and drums in all factories and work-
shops when so placed as to be dangerous to persons em-

22 E. L. Casey v.

ployed therein while engaged in their ordinary duties
shall be securely guarded when practicable, if otherwise
then a notice of its dangers shall be conspicuously posted
in the factory or workshops/'
2 Genst. p. 2345.

In Griffith v. Mountain Ice Co., 65 Atl. 853, it was
held that the provisions of this statute did not apply to
shafting used in harvesting natural ice, the court saying :

'We think that the defendant's plant does not come
within the statutory language 'factories and workshops,'
not only because those words import a building in which
the machinery is so placed as to be dangerous to opera-
tives, but, also, and chiefly, because such words in their
statutory context imply that the places to which they re-
fer are those where machinery is employed in the work
of fabrication; i. e., of making or manufacturing some-
thing. Such is the common meaning of a factory or
workshop. Obviously the statute was not intended to
apply to all cases in which shafting, belting and gearing
were employed; for if that had been the legislative pur-
pose, the limitation 'in factories and workshops' would
not have been used. Some meaning must therefore be
given to these words of limitation, and the one I have
suggested is that naturally arising from the context. The
use of the word 'operatives' in the title of the original
act, also lends color to this construction."

The force of the opinion in this case is somewhat les-
sened by the fact that the decision of the Court was
placed chiefly on another ground, but the Court never-
theless explicitly decided that the provisions of the stat-

The Barber Asphalt Paving Company. 23

ute applied only to belting, shafting and gearing in fac-
tories and workshops.

In Ward v. National Lumber & Box Co., 54 Wash.,
304, the Court said :

"The act further provides for ventilation and sanitary
conditions, guarding of trap-doors and hatchways, etc. ;
so that it will be seen from a reading of the act that the
evident intention of the legislature was to protect oper-
atives in factories in every manner and in every par-
ticular in which they could be protected consistent with
the reasonable operation of the particular factory which
was engaged in business."

In Rabe v. Consolidated Ice Co., 113 Fed. 905, in
speaking of the New York factory act, the Court said:

"The purpose of the statute is to throw a safeguard
around the workmen employed in business establishments
where machinery is in use which may endanger those
who are likely to be brought into contact with it, and to
whom its presence, if it is not protected, is a constant
menace. So far as is consistent with the language of the
statute, that purpose should be given effect.''

In the cases last cited the question now under consid-
eration was not involved, but the language of the Courts
is significant, as it shows the impression a reading of
the act at once conveys, and the first impressions of a
well-trained, active mind are usually correct.

Counsel for plaintiff have quoted the Act of March 14,
1911 (Laws of 1911, p. 345), defining the terms "fac-
tories," "workshops" and "mill," and claim that this is
a legislative construction of similar words in the pre-

24 E. L. Casey v,

existing statute. The following are the definitions
given :

"Factories mean undertakings in which the business
of working at commodities is carried on with power-
driven machinery, either in manufactures, repair or
change, and shall include the premises, yard and plant
of the concern."

^'Workshop means any plant, yard, premises, room or
place wherein power-driven machinery is employed and
manual labor exercised by way of trade for gain or
otherwise in or incidental to the processes of making, re-
pairing, engraving, painting or ornamenting, finishing
or adapting for sale or otherwise any aritcles or part
of articles, machine or thing, over which premises, room
or place the employer of the person working therein has
a right of access or control."

"Mill means any plant, premises, room or place where
machinery is used, in processes of manufacturing, chang-
ing, altering or repairing any articles or commodity for
sale or otherwise, together with any yards or premises
which are a part of the plant, including elevators, ware-
houses and bunkers."

No doubt a legislative construction of the language
of a previous act is sometimes entitled to great consid-
eration by the courts, but it is by no means conclusive and
the rule itself has no application where the earlier act is
free from ambiguity. "Indeed, the cases are so numer-
ous in this court to the elTect that the province of con-
struction lies wholly within the domain of ambiguity,
that an extended review of them is quite unnecessary.
The whole doctrine applicable to the subject may be

The Barber Asphalt Paving Company, 25

summed up in the single observation that pricr acts may
be resorted to to solve, but not to create, an ambiguity."
Hamilton v. Rathhone, 175 U. S. 414, 421.

I look upon the act quoted as a legislative recognition
of the self-evident fact that the language of the previous
statute was not broad or comprehensive enough, and did
not include all the machinery and all the appliances that
should be safeguarded. Nearly every legislative act on
this subject defines the terms used to describe the fac-
tories, places and machinery to which the act is intended
to apply. These definitions are often purely arbitrary,
and are given for the sole purpose of avoiding repetition.
Thus by the Act fo 1911 the legislature might well have
declared that the term ''factory" should include all the
buildings, places and premises defined under the three
terms there used.

The injury in this case occurred long prior to the
passage of the Act of 1911, and the rights of the parties
can not be affected by subsequent legislation. There is
no limit to the power of the legislature in defining terms.
It has declared that the male shall include the temu'e;
that the singular shall include the plural ; that the word
"person" shall include "corporation"; and it is entirely
within its province to declare that the night shall include
the day; but it would be idle to claim that such a legis-
lative declaration would be binding upon the courts in
construing a pre-existing statute. As said in Bingham
V. Winona County, 8 Minn. 441, "the opinion of a sub-
sequent legislature upon the meaning of a statute is en-
titled to no more weight than that of the same men in

26 E, L. Casey v.

a private capacity"; and this is doubly true where the
previous statute is free from doubt or ambiguity.

The plaintiff candidly admits that the act does not
apply to or preclude all shafting, coupling and ma-
chinery, and that certain classes of machinery fall
within and others without the provisions of the statute.
The line of demarkation must therefore be drawn some
place, and if it is not drawn between machinery in fac-
tories, mills and workshops, as those terms have been
jdefined by lexicographers, law-writers and courts, and
machinery in other places, I confess I do not know where
the border line between the two classes of machinery
can be said to lie. The plant in this case does not differ
from the threshing machine, the steam shovel, the
wrecking car, and many other mills, machines and appli-
ances that might be named. Indeed, it dift'ers in degree
and not in kind from the concrete mixers and asphalt
mixers which we see in use every day on the streets of
our cities, and it will scarcely be claimed that these are
factories, mills or workshops.

In reaching this conclusion I have avoided the rule of
strict construction; for while the statute is in deroga-
tion of the common law and imposes a penalty for its
violation, yet, like the Hours of Service Act, the Safety
Appliance Act, and other acts intended for the protec-
tion of the public, or of employees, it should receive a
fair and reasonable construction for the purpose of giv-
ing full effect to the legislative intent. But no construc-
tion of the act within reason will save the rights of the
plaintiff, and the motion for a judgment in favor of the

The Barber Asphalt Paving Company. 27

defendant, notwithstanding the verdict of the jury, must
therefore be granted, and it is so ordered.

Endorsed: Opinion. Filed Nov. 20, 1911.

F. C. NASH, Clerk.

By E. E. WRIGHT, Deputy.

In the Circuit Court of the United States for the Eastern

District of Washington, Southern Division.
E. L. CASEY,

Plaintiff,
vs.
THE BARBER ASPHALT PAVING COMPANY,

Defendant.
No. 268.
JUDGMENT.
The above entitled cause having come on regularly
for hearing on the 6th day of October, 1911, and the
respective parties appearing with their attorneys, and
a jury having been duly and regularly impaneled and
sworn to try said case, the plaintiff adduced evidence
and testimony in support of his pleadings herein, and
rested, and the defendant adduced evidence and testi-
mony in support of its case, and rested, after which the
Court charged the jury on the 8th day of October, 1911 ;
that said jury then retired to consider of its verdict, and
on said day returned a verdict herein against the de-
fendant, and in favor of the plaintiff in the sum of
seventy-five hundred dollars ($7500).

That thereupon the defendant, in open court, moved
the Court for a judgment for the defendant notwith-
standing the verdict, the hearing on which was con-

28 E. L. Casey v.

tinued to a later date, and judgment was entered in ac-
cordance with said verdict, subject, however, to the de-
fendant's said motion.

That pursuant to the stipulation of the parties, the ar-
gument on said motion was to be presented by written
briefs, which briefs were thereafter duly presented to
and considered by the Court, and after said consider-
ation, and being fully advised in the premises, said mo-
tion is hereby granted; and

It is ORDERED and ADJUDGED that the verdict
and the judgment heretofore entered herein thereon, and
subject to said motion, be and the same are herby va-
cated, set aside and held for naught; and.

It is further ORDERED and ADJUDGED that the
plaintiff take nothing herein, that said action be dis-
missed, and that the defendant do have and recover of
and from the plaintiff its costs and disbursements herein
to be taxed.

It is further ORDERED that plaintiff have until the
22d day of January, 1912, in which to serve and file a
bill of exceptions in the above entitled cause.

The plaintiff excepts and said exception is allowed.

Done this 29th day of December, 1911.

(Signed) FRANK H. RUDKIN,

Judge,

O. K. as to form.

Attorneys for Plaintiff.
Endorsements: Judgment Notwithstanding the Ver-
dict. Filed December 29, 1911.

FRANK C. NASH, Clerk.

The Barber Asphalt Paving Company. 29

In the United States District Court for the Eastern Dis-
trict of Washington, Southern Division.
E. L. CASEY,

Plaintiff,
vs.
THE BARBER ASPHALT COMPANY,
a Corporation,

Defendant.
BILL OE EXCEPTION.
BE IT REMEMBERED, That this cause came on for
trial in the above-entitled court on the 6th day of Octo-
ber, 1911, the plaintiff appearing by Messrs. Thomas &
Toner and A. S. Bennett, his attorneys, and the de-
fendant appearing by A. G. Avery and C. C. Goss, its
attorneys, and thereupon at said trial the plaintiff intro-
duced testimony in support of the allegations of his com-
plaint that he was injured in a plant being operated by
the defendant at Walla Walla, Washington, at the date
and place alleged in the complaint, and that said evidence,
in the opinion of the Court, was sufficient to warrant the
Court in submitting the case to the jury only if the plant
above referred to and on which the plaintiff was injured
came within the provisions of the Factory Act of the
State of Washington, to-wit. Chapter 5 of Title L of
Remington &. Ballinger's Annotated Codes of Washing-
ton, and was a ''factory, mill or workshop" within the
meaning of said act. The Court was further of the opin-
ion that unless said plant above referred to was a "fac-
tory, mill or workshop" within the meaning of said act,
that there was not sufficient evidence to sustain a recov-
ery under the provisions of said Factory Act if the plant

30 E. L. Casey v,

in question was a factory, mill or workshop within the
meaning of said act. There was not sufficient evidence
to support a recovery except under said act. The use of
the word "plant" herein is simply for identification of
the apparatus in connection with which plaintiff was
injured and not as a finding or conclusion as to its char-
acter.

AND BE IT FURTHER REMEMBERED, That
during the trial of said cause the following testimony was
introduced in said cause bearing upon the character of
such plant:

E. L. CASEY, having been called as a witness on be-
half of plaintiff, and having been first duly sworn, testi-
fied as follows :

Question : You are the plaintiff in this case ?

Answer: Yes, sir.

Q. Where do you live?

A. At 554 Pleasant Street.

Q. How long have you resided in this city and
county ?

A. I have resided in this state for practically twenty-
two years, and have resided in the City of Walla Walla
for six years last past, continuously.

Q. Were you in the employ of the Barber Asphalt
Company on the 6th day of August, 1909?

A. I was.

Q. How long had you been in their employ?

A. About six days, six or seven days. I believe we
worked one Sunday.

Q. Now, I will show you Plaintiff's Exhibit 1, and
will ask you to state what that is.

The Barber Asphalt Paving Company. 31

It represents the plant, the central part of the plant,
and the location in which I was injured.

Q. Who drew that?

A. That was drawn by Mr. Ray B. Cox, and I as-
sisted in taking the measurements, and in printing the
blue print.

Q. Where is Mr. Cox now ?

A. In Boise, Idaho.

Q. You may state whether or not this is a correct
drawing of the part of the plant it represents.

A. It represents, I believe, as nearly a correct draw-
ing as a person could make by making measurements
and drawing it.

Q. What was that plant or mill used for ?

A. It was used for mixing asphalt, sand and
crushed rock, as the case might be. If they wanted to
mix material for the bottom they would mix asphalt
and crushed rock, and if they wanted to mix for the
top they would mix asphalt and sand, and possibly some
cement, I believe.

Q. How was the material for this mixture brought
there ?

A. The sand and asphalt?

Q. Yes.

A. It was brought there in wagons. The railroad
track was close and they brought it there in cars.

Q. How was it taken away?

A. It was hauled away in wagons, dump wagons,
wagons that the bottom would fall out and let the ma-
terial drop to the street.

Q. How extensive was the collection of machinery
there

32 E. L. Casey v.

Mr. AVERY : I object to that. I do not object to his
describing it.

The COURT: I suppose that is substantially what
the question calls for.

A. It was quite an extensive piece of machinery.

Mr. AVERY: I object to that; that is not describ-
ing it.

Q. State as near as you can how big it was ?

A. I should judge it would weigh one hundred and
eighty tons, or something like that ; maybe not so much.

Mr. AVERY: I do not think this witness is compe-
tent to testify to that.

The COURT: Its weight is not material, anyway;
its dimensions nor its construction.

A. (Continued). I never saw it scaled. I remember
hearing some of the employees talking about it, but I do
not recall exactly what they said.

Mr. BENNETT: It seems to me that under one
feature of this case the question of the description of
the machinery there is important.

The COURT: I will concede that, but the statement
that it was a very large piece of machinery does not
convey anything.

Mr. AVERY: We do not object to his describing it.

Mr. BENNETT: That was really what I wanted.

The COURT: He may describe it.

Q. Give how big the machine was there on the
ground, its dimensions and the whole thing.

A. That car was about sixty feet long and it is the
ordinary width of the ordinary flat car, or some little

The Barber Asphalt Paving Company. 33

wider. I should judge it was something Hke sixteen
feet wide but I cannot judge exactly.

Q. Would that be your best judgment?

A. Yes, sir.

Q. What was there belonging to the car or plant, if
anything, besides what was on the car?

A. There were tool sheds built there.

Q. Where?

A. Within eighty feet of the machine, for the use of
storing tools and oil.

Mr. AVERY : We move to strike that out as incom-
petent, irrelevant and immaterial.

Motion overruled.

Exception taken.

A. There was also a sort of a building there for the
collection of dust and siftings from the material used.

Mr. AVERY: Where?

A. At the rear of the plant. It was connected with
the plant by a large galvanized pipe, possibly it was
twenty or thirty inches in diameter.

Q. Now go ahead.

A. Where the material was conveyed to the machine
it was conveyed by an elevator with buckets on.

Q. I will ask you about this photograph; state
whether or not this photograph. Defendant's Exhibit 4,
shows the machine as it stood there at that time?

A. Partly, but it does not show this pit. I have a
photograph taken three or four days after the accident
that shows that better and plainer.

Q. Does it show the hopper where the material was
put?

34 £. L. Casey v.

A. It does not.

Q. Now, how much of the car you spoke of was taken
up or covered by the machinery?

A. All of the car was covered with machinery, in-
cluding, of course, the vats for heating the tar and the
rolls for the hot material.

Q. Now, was there any roof over any part of this
machinery?

A. There was a driveway where the wagons drove
up to be loaded. There was a roof where the wagons
could drive under to load. There was also a platform on
each side projecting out.

A. The platform where the wagons were loaded was
an iron platform on either side. There was a platform
on either side, and the side facing Main Street was for
employees walking along there in order to work with
the machine, to fire the furnaces and to get to the ma-
chine from this platform.

Q. Now, watch the questions closely and just answer
as we go along and we will get at it more orderly. The
question was what part of this plant was covered with a
roof, including the car and the machinery on the car?

A. The vats and rolls were covered with a tin roof.
The machinery in the center of the car was not covered.

Q. Now, these platforms you spoke about, the ones
where the wagons loaded, and the one where the men
walked, was that on the car ?

A. No, sir ; they were not.

Q. Where were they in relation to the car

A. They were fastened on one side to about a level
with the car, projecting out possibly a distance of four

The Barber Asphalt Paving Company. 35

feet, and then stakes were put into the ground and
boards were laid on top.

Q. How was that with the other one where the
wagons loaded?

A. It was higher. It was built just the same, and
projected out probably ten or twelve feet, with space
enough to let a wagon drive under and load.

Q. What was that platform used for, how was it used
in loading?

A. It was in the central part of the plant. I sup-
pose this was used to protect the teams. The asphalt
was hot —

Q. How was the platform used in loading the ma-
terial ?

A. A man would stand on the platform and operate
the mixing vat and the dump to fill the wagons.

Q. How many men were working about that plant
at the time you were there ?

A. I do not recall the exact number. I would judge
there were between six and eight employees worknig
there at that time.

Q. Was there more than one hopper there into v/hich
material was put to be carried up into the machine?

A. No, sir.

Q. Was the crushed rock and the asphalt and the
sand all put into the same hopper?

A. No, sir.

Q. Now, can you explain to the jury the jpjration
as briefly and carefully as you can, the operation Df the
machine, how it operated, how the material was put in

36 E. L. Casey v,

there, how it was carried together, how it was mixed,
and the whole operation?

A. Can I use something to demonstrate?

Q. If there are any of these pictures that you can
use, use them. I will ask you if this photograph that
you have in your hand, if those photographs you have
in your hand are photographs of the plant?

A. Yes, sir.

Q. Were you there when they were taken?

A. No, sir, I was not. I was in the hospital. They
were taken immediately after my injury.

Q. What do you say as to whether they are correct
representations of the plant as it was when you were
hurt?

A. They are correct representations of the plant as
it was when I was hurt.

Mr. BENETT : Now, we will offer these in evidence.

Mr. AVERY: You say the machine was run at the
time these pictures were taken the same as at the time
you were hurt ?

A. They were taken possibly three days after I was
hurt.

Mr. AVERY: When you were hurt were they run-
ning this with a belt?

A. No, sir.

Mr. AVERY: If there is a belt shows here they do
vnot show the conditions at the time you were hurt?

A. No, sir, that is true. It was being run with a
gasoline engine when I was hurt.

Q. This was probably taken some time afterwards?

The Barber Asphalt Paving Company. 37

A. Yes, sir, probably it was. I had several photo-
graphs taken.

Received in evidence and marked Plaintiff's Exhibit
4 and Plaintiff's Exhibit 5.

Mr. AVERY : We consent only to the picture of the
machine itself and its immediate attachments. I do not
know anything about the surroundings.

Q. You may use there either of those pictures, Ex-
hibits 4 and 5, and when you refer to one of them refer
to it by number, and explain to the jury just how it was
operated.

A. I now have in my hand Plaintiff's Exhibit 4. The
crushed rock and sand was taken in at this end, from
the left end of the machine as shown by the picture.

Q. How was it taken in?

A. It was taken in by this chain of buckets or cups and
was carried up into the rolls, the two large rolls on the
left end of the machine, and there heated.

Q. Where was it taken from?

A. From the ground.

Q. Was there a hopper there?

A. Yes, there was a hopper there to place the ma-
terial so the chain of buckets would catch it and carry
it into the machine.

Q. Go ahead.

A. It was taken into the rolls and heated and about
the center of the machine it was carried into the elevator
there that you see near the smokestack, then the asphalt
was brought to the right side of this picture looking at
it this way and was put into a large vat there. This
little derrick between here and the smokestack was to

38 E. L. Casey v,

pull up the asphalt from the ground in barrels and put it
in the vat. When in the vat they were heated and trans-
mitted to the center of the plant in the vicinity of this
elevator, where the mixer or grinder was, where the as-
phalt and sand or the asphalt and crushed rock, as the
case might be, were ground and mixed together thor-
oughly. After that the material was transferred into
the wagons to be hauled to the streets.

Q. How was it put into the wagons?

A. There was an elevator there that, when the vat
was full and thoroughly mixed, the elevator would turn
over and the bottom of the box would open and drop it
into the wagons.

Q. Now, how much of this material would be ground
through there in a day, about, approximately?

A. I do not remember the number of loads.

A. If my recollection serves me right I believe they
made a wagon load of that material in seven minutes.
I may be a little off one way or the other.

Q. Was it operated all day.

A. Yes, sir; it was started up and if working prop-
erly was worked all day. It was never shut down for
noon, but worked on until night.

Q. Now take Plaintiff's Exhibit 1 and explain to the
jury what that part marked "A" represents, in refer-
ence to what you have already said.

A. The part marked "A" represents a revolving
screen inside of the sheet iron casing where the material
was screened.

Q. Now, what material would be occupying that
screen or drum?

The Barber Asphalt Paving Company, 39

A, The crushed rock, I believe, was in there.

Q. Where was the sand heated, if at all ■

A. The sand was heated in the drums where the
crushed rock was heated.

Q. In this same manner ? In this same one ?

A. No, the left of the machine looking at Plaintiff's
Exhibit 4.

Q. The drums where that was heated do not show
on this plan here

A. No, sir, they do not.

Q. Now, when the plant was in operation was "A"
hot or cold?

A. It depends on whether they were using sand or
crushed rock. If they were using crushed rock the drum
would be hot and if they were using sand it would be
cold — not cold, because the entire plant was warm, but
not so hot as in using the crushed rock. If my memory
serves me right I think the crushed rock was screened
in there.

Mr. BENNETT: I will put some letter here, if you
have no objection.

Mr. AVERY: We have no objection.

A. (Continued). I was not thoroughly acquainted
with the manufacture of asphalt pavement.

Q. Now, tell the jury what the shaft running from
X to Y on the plan represents

A. That represents the drive shaft.

Q. What machinery was driven by that shaft?

A. I would judge the rolls to the left of the plan
looking at Plaintiff's Exhibit 4 and the chain of buckets
that was used to transmit the material into the rolls, in

40 E. L. Casey v.

fact all of the machinery of the plant with the exception
of the derrick used for elevating the asphalt into the
vats. It also operated the fan that blew the dust out of
the material.

Q. Now, what do these cogwheels at F represent?

A. Those cogwheels at F represent the cog gears
from the gear shaft ; one of them is on the shaft and the
other is a counter-gear wheel to run the large cogwheels
above, on the end of which were the rolls where the ma-
terial was mixed.

Q. Do the large cogwheels above show here?

A. No, sir.

Q. Do they show in any of these pictures?

A. Yes, sir. Just the outlines of the large gears are
shown here — this dotted line.

Q. Does the large wheel show on defendant's Ex-
hibit 2?

A. Yes, sir, both of them show. The corner of the
picture is one and the center part at the top is the other
large cogwheel. They mesh into each other.

Q. Now, is the shaft appearing on this Defendant's
Exhibit 2 the same as the shaft that extends from X
to Y on the plan — is it part of the same shaft?

A. Yes, sir, it is the same shaft.

Q. Now, you may state what your duties were dur-
ing that time.

A. Engineer and oiler.

Q. You were engineer and oiler?

A. Yes, sir.

Q. What was the source of power of that mixing
mill?

The Barber Asphalt Paving Company. 41

A. A gasoline engine. The horse power was about
fifty to sixty, I beHeve.

Q. What machinery did you have to oil ?

A. All of the machinery on the plant, together with
the engine.

Q. Now, in what manner was that mill conducted
as to constant operation.

A. Unless absolutely necessary to shut down on ac-
count of a break they operated all day. They started at
seven in the morning. Generally they would operate all
day and would not shut down for the noon hour, and
would only shut down in the evening and would begin
the next morning.

Q. You would not shut down at noon?

A. No, sir.

Q. Was there any reason why the mill operated con-
tinuously?

A. Yes, sir. These large rolls located at the left of
the machine, looking at Plaintiff's Exhibit 4, were hot
when they were revolving, and —

Q. How hot were they ?

A. They were very hot. I know there was a fur-
nace under them and they were nearly redhot. They
were so hot that if we shut down they would warp in
the center.

Q. Was there anything in them that made them
warp?

A. Yes, sir; the hot material.

Q. What would its condition be? Why would it
warp?

A. It was heavy, the rolls being hot it would warp
them if they were left standing in one position.

42 £. L. Casey v.

Q. Now, how often did you have to oil that ma-
chinery ?

A. Well, about every hour. I believe it was my in-
structions to oil the machinery every hour, and possibly a
little oftener. I used my own discretion more or less,
and oiled whenever it needed it. Some parts required
oiling oftener than others. For instance, the fan re-
quired more attention and watching than other parts.
It ran at a high rate of speed.

Q. How was that machinery as to operating
smoothly or heating?

A. It was very liable to heat when they used sand
or crushed rock, either. The sand would fly and get all
over the machine, and into the gasoline engine. It was
a mass of sand. You could wipe off sand any place,
and, of course, it would get into the boxing and make
the boxing heat.

CROSS-EXAMINATION.

Q. You say this exhibit 1, this blue print, represents
the correct plan of the plant, or that part which it pur-
ports to represent ?

A. Yes, sir, as near as can be drawn.

Q. Did you say this car projecting above the plat-
form, above the tracks, was sixteen feet wide, is that
what you said ?

A. As near as I can tell, somewhere along there.

Q. It was about the size of an ordinary flat car?

A. I judge it was a little wider.

Q. It was made for moving on the railroad tracks ?

A. Yes, sir.

Q. It set on the regular tracks ?

The Barber Asphalt Paving Company, 43

A. Yes, sir.

Q. It could be put on a train of cars and taken to
some other point ?

A. Yes, sir.

THE COURT : Was it ever taken from the rails ?

A. They would build a side track to get it wherever
they wanted it, and it would be left on the rails and left
there.

Q. They would build a spur out there where they
wanted it and when they got it where they wanted it they
would take up the intervening track?

A. Yes, sir, that is correct.

Q. How long did you say that plant was? I think
you said sixty feet?

A. About sixty feet. I am guessing at it.

Q. You said something about some sheds around
there, and I did not quite understand what you meant,
what sheds did you refer to ?

A. One was the tool shed; it was a little building
with a roof over it.

Q. Just to throw the tools in

A. Yes, and they kept the oil in there.

Q. How large was it ?

A. I judge it was twelve by fourteen feet.

Q. That did not have anything to do with the plant ?
That had to do with the laying of the asphalt on the
streets, that was where they kept the street tools?

A. No, they kept lots of the plant tools there, and
all the oil.

Q. How far was it from this place ?

A. Eighty or ninety feet.

44 £. L. Casey v.

Q. Is it in any of these prictures ?

A. Yes, sir, it is in one, I believe.

Q. Is it in this one. Plaintiff's Exhibit 4?

A. Yes, sir, it shows just the top of one corner, and
it also shows the office where the phone was. This is
the tool shed here.

Q. The place I mark with an A is that the corner of
the tool house you refer to ?

A. Yes, sir, that represents the tool house.

Q. Now Mr. Casey you said there was a box to hold
dust twenty by thirty inches ?

A. I do not believe I stated that.

Q. Well twenty by thirty. I do not remember
whether feet or inches.

A. I do not remember that. There was a square
box —

Q. Where?

A. In the rear of the plant, close to the chain of buck-
ets used to carry the material.

Q. I hand you Defendant's Exhibit 4, is it in that?

A. No, sir.

Q. Does it show on any of your exhibits

A. Yes, sir.

Q. Which one?

A. It shows on Plaintiff's Exhibit 4.

Q. I will put the letter B there, is that the dust box
you refer to?

A. Yes, sir, that is where the screenings were
thrown, in there.

Q. Did you say anything about a hopper in here?

A. Yes, sir.

The Barber Asphalt Paving Company. 45

Q. Is it on your exhibit 4 ?

A. Yes, sir, it is represented in Plaintiff's Exhibit 4.

Q. Where is it?

A. Right at the base of the chain of buckets there.
There is a kind of a hole there.

Q. Is it a hole immediately above the letter C, I am
making?

A. Yes, sir, right there.

Q. This is the hopper you refer to ?

A. Yes, sir.

Q. This is a hole in the ground in which they dumped
the stuff in and then it is dumped into the elevator to
be taken up

A. Yes, sir, I judge so.

Q. Looking at Plaintiff's Exhibit 4 which way are
you looking?

A. We are looking towards Ninth street. It would
be northwesterly I believe.

Q. Are you sure you are not looking in a southerly
direction ?

A. I think it would be west, just about, if my mem-
ory serves me right.

Q. Isn't this the front of the machine?

A. It depends on what you call the front of the ma-
chine.

Q. The platform the employes walked on ?

A. It shows the side of the machine facing Main
Street. The employes go on both sides.

Q. This is the side you feed from, you feed the ket-
tles from here?

A. No, not the kettles, not the asphalt kettles.

46 E. L. Casey v,

Q. I mean you feed the furnaces under the kettles?

A. It shows the side where the furnaces are located
that heat the sand rolls. It shows on the opposite end
the furnaces that heat the asphalt.

Q. Is the platform there that you unload from into
the wagons ?

A. Yes, they haul on that side on the end.

Q. We see that side of the plant do we ?

A. Yes, sir, we see that side.

Q. Then I take it the compression pump is on the
other side of the machine?

A. No, sir.

Q. Isn't that platform on the opposite side from the
compressor and loading platform?

A. Where it is loaded, not where it is unloaded to be
taken into the sand rolls.

Q. Now I want it settled, is this the side Judge Ben-
nett inquired about?

A. The side where the wagons are loaded does not
show on this picture.

Q. That is on the other side?

A. It does not show where the wagons are loaded.

Q. Is it on the opposite side ?

A. Yes, it is on the opposite side as the plan is shown
by this picture.

Said hearing was then adjourned until the hour of
one-thirty p. m. of the same day at which time the fol-
lowing further proceedings were had, among others :

E. L. CASEY resumed the witness chair, and upon
further cross-examination testified as follows :

The Barber Asphalt Paving Company. 47

Question. I will ask you if the roof you refer to was
not simply the top of these drums.

A. It was the covering of the kettle on one end and
the covering of the drum on the other end.

Q. That covering was necessary in order to operate
the kettle on one end and the drums on the other.

A. I presume so.

Q. To maintain the heat?

A. I believe so.

Q. Now referring to these pictures (showing photos
not in evidence), I will ask you to look at this picture as
far as the two ends beyond the center space is concerned,
and see if this is not a picture of the plant, a fair repre-
sentation of the plant.

A. It represents it generally.

Q. Wherein is there any difference in the ends ?

A. That is plant number 1 and the other was plant
number 8.

Q. You are taking that from the picture ?

A. Yes, sir.

Q. It is relatively alike isn't it?

A. Yes, relatively, but there is quite a difference be-
tween this plant and the other one.

Q. What difference is there between the two ends as
distinct from the space in the center?

A. The tar kettles look nearly the same. The other
end is not as high and is differently constructed.

Q. How different?

A. The air compressor is different.

Q. You have a locomotive air compressor on this
plant?

48 E, L. Casey v,

A. Yes, sir,

Q. This one is not the locomotive kind?

A. Yes, sir.

Q. If there is anything different just tell the jury?

A. To look at this picture and look at the plant I was
injured in you would recognize they were both paving
plants.

Q. You would recognize they were both the same
kind of a plant? The general characteristics are the
same on the ends ?

A. Practically, but there are different features.

Q. What features are different?

A. The general looks of the machinery. The engine
is different, the elevator is different, and these furnaces
under the rolls seem to be differently constructed.

Q. How?

A. If I am not mistaken there is more than one fire
box under the others.

Q. Look at your exhibit 4 and you will see it is all
dark in there and you cannot see any of the details —
that is what I am trying to bring out ?

A. This seems to be plain enough to discern the gen-
eral lay of the plant. I can see quite a difference in
them.

Q. This one in the picture I hand you that is not in
evidence, you say it is not the same on this side where
the kettles are ?

A. They are different.

Q. Wherein are they different?

A. The roll on which I was hurt is taller and there

The Barber Asphalt Paving Company. 49

are several different features. I do not think that was
as large as this one.

Q. Now take Defendant's Exhibit 4, which is a lit-
tle lighter, this side of it, the right hand side is where
the kettles are, isn't it, the right half that you see in a
general way?

A. Yes, sir, the right half of the picture represents
the kettles.

Q. Right at the bottom of that are three stokeholes
for fire places ?

A. Yes, sir.

Q. And the three things up here are smoke stacks?

A. Yes, I believe so.

Q. And to the left and nearly in the center is the ele-
vator ?

A. Yes, sir, only it was on the opposite side of the
machine.

Q. It is in the back of the machine ?

A. Yes, sir.

Q. You would call this side of the exhibit the front
of it?

A. I always considered that the front, because it was
the side on which most of my work was done.

Q. Now regarding the platforms, these platforms,
did you say there were one or two ?

A. Where ?

Q. Back of the plant, you said there were two plat-
forms didn't you, or one ?

A. I do not know whether I said there were two or
not. I said the platform on the side where the wagons
were loaded was an iron platform on the opposite side.

50 E. L. Casey v.

Q. The platform on the opposite side was right at
the top of the car tracks ?

A. Yes, sir, nearly level with the car.

Q. Level with what you would call the bottom of the
car if it had been a flat car?

A. Yes, sir.

Q. We will call that the front side.

A. Yes, sir.

Q. That is where you generally did your work, along
on that platform — was it a plank platform?

A. Yes, sir, most of my work was there because the
engine was there.

Q. I will now show you this exhibit 1, this platform
where the little ladder runs up is the one you refer to ?

A. Yes, sir. This is not quite the same, but that is
the side of the machine I am referring to.

Q. The platform on the other side was simply for
the purpose of dumping.

A. Yes, sir.

Q. This stufif was mixed and dumped through a hole
in the platform into the wagons to receive it

A. Practically speaking, yes, sir. The platform ex-
tended along by the asphalt kettles. I believe there were
some stacks to be raised and lowered there.

Q. This platform — I am looking at your exhibit 5 —
these platforms you refer to are left ofif of the picture?

A. Yes, sir.

Q. The first part of that, I take it, is the hole for the
asphalt down through into the wagons under it?

A. Yes, sir.

Q. The part more to the left of that platform, as it

The Barber Asphalt Paving Company. 51

extended more to the left was for the purpose of raising
and lowering these stacks ?

A. Yes, sir.

Q. Were these stacks raised and lowered every day
or for the purpose of putting it on a train of cars, or
don't you know they are telescopic stacks, aren't they?

A. Yes, sir, I believe so. It depended on the condi-
tion of the fire in them as to how they used them.

Q. Now this derrick, you mentioned a derrick, take
your exhibit 4, is that little triangular thing there to the
right — is that the derrick?

A. The derrick I refer to is an air hoist, but when
the air hoist would not work the asphalt had to be taken
up there with a block and tackle. That was not a part
of my work.

Q. Your work was confined to running the engine
and oiling the machinery ?

A. Yes, sir, keeping the machinery oiled.

Q. And running the engine ?

A. Yes, sir.

Q. Now take your exhibit 6, we are looking from the
front to the back, where was your engine, here to the
right?

A. Yes, sir.

Q. Is it shown here?

A. No, sir, it is not shown there.

Q. It was an upright gasoline engine ?

A. Yes, sir.

Q. At the left end of the middle part?

A. Nearly in the center of the car, and to the end of
the asphalt kettle.

52 E. L. Casey v.

Q. As a matter of fact this machine did not do any
grinding?

A. When the two kinds of material came together
they were ground together and mixed.

Q. They were ground together?

A. Yes, sir.

Q. What was there to grind them?

A. There were kind of paddles. I did not operate
it, but I have seen it a good many times.

Q. It did not grind them in?

A. It ground them together.

Q. Did it break up the material ?

\. It migh; Ireak up portions of the sand.

Q. It mixed it didn't it?

A. Yes, sir.

Q. It did not do any more than mix it

A. It ground the material together.

Q. \\'hat do you mean by "grinding it together?"

A. It mixed it and ground it.

Q. How did it grind it? Did it break up some of the
particles ?

A. Possibly.

Q. There weren't any teeth or anything to crush
them?

A. There were kind of teeth.

Q. That crushed it?

THE COURT : I doubt whether it makes any differ-
ence whether it ground it or crushed it.

Q. Now you said some part of the machinery was
hot when the sand was run through and cold when the
rock was run through?

The Barber Asphalt Paving Company. 53

A. I am not thoroughly acquainted with the manu-
facture of asphalt pavement. My duties were to oil the
machinery. It was my impression it was heated when
the rock was run through there. I know that thing at
times was hotter than at other times. I believe I said
it was hot when the rock was run through and cold when
the sand was run through. I do not think the sand was
screened.

Q. You stated it had to run all the time and if it
stopped the rock and sand or whatever was in there
would have a tendency to make it warp?

A. Yes, sir.

Q. At noons and at times when the plant was not is-
suing its product, at those times there wasn't anything
in there, it was run empty, wasn't it?

A. When they were loading the wagons the engine
was running and the rolls were kept revolving. Some-
times when it was absolutely necessary to shut down the
plant in the mill and shut down the engine they would
they would take a crowbar and keep these rolls revolving
to keep them from warping.

Q. When you went to dinner there wasn't anything
in it?

A. There was a string of wagons going to the street.

Q. There were times when the wheels were going
when there wasn't anything going through, wasn't that
so at noon ?

A. Yes, sir. In the evening when the men were sent
away with their teams the plant was kept running an
hour and a half or two hours in order to let those rolls
cool. The fire was taken out and water thrown on it

54 E. L. Casey v.

and the engine was operated in order to let the rolls cool.
I would leave my work and Mr. Ryan would close the
engine down after I would leave.

Q. They were empty at that time, the rolls ?

A. Yes, sir, of course, after we would quit mixing
material.

Q. Now in relation to the covering on the two ends
of the cars, was that high enough so you could get under
it and work under it ?

MR. AVERY: We object, there is no evidence that
there was any roof to the car.

THE COURT: He testified there was a covering of
some kind. The witness may say how high it was.

A. The covering over the kettle, the asphalt kettles
was right on top of the kettles, flat across them, and the
covering over the rolls where the gravel and crushed
rock and sand were heated was flat on top and oval on
both sides. I do not know how high above the rolls it
was. The rolls were not visible.

Q. I want to know whether it was so the employes
could go under that covering at the two ends.

A. No, sir, not unless they crawled under the car.

Q. Now in relation to this hole or hopper where the
material was taken up, wasn't it a mere hole in the
ground, or what was it ?

A. It is my recollection there was a hole dug in the
ground and timbers were put there to bolt castings on
which a chain run to run this other chain. The casting
was bolted to these large timbers, and this hopper was
built upon it leaving a place for the chain to run through,

The Barber Asphalt Paving Company. 55

and the hopper was buih up level with the ground, so
the employes scooping the sand or crushed rock could
scoop on a level with the ground. I suppose it was built
for that purpose. That is my recollection of the way it
was built.

Q. You said something in your cross examination
about the office telephone, was it used in connection with
the mixing mill ?

A. Yes, sir, there was a telephone in there and it
was the Barber Asphalt Paving Company's telephone.
They used that as an office.

Q. As an office for the mill

A. Yes, sir.

Q. How far was that from the balance of the plant
or machinery?

A. It stood right next to the tool shed, I judge fifty
feet or somewhere along there.

Q. How large a building was it?

A. It had a gable roof, about ten by twelve, or eight
by ten.

RE-CROSS EXAMINATION.

Question: Is it in any of the pictures?

Answer: Yes, sir, I believe so.

Q. Calling your attention to Plaintiff's Exhibit 4,
right above this pipe and to the left of the elevator is
what looks to be an awning over a window ?

A. It is a sack.

Q. Is that the building you refer to

A. Yes, that is the building, I believe.

Q. I will mark X on the roof, is that the building?

A. Yes, I think that is the building.

56 E. L. Casey v.

Q. A sack was over the window ?

A. I am not positive as to the sack, it looks Hke a
sack.

Q. Now I am going to ask you if the upper left hand
picture here is not substantially a representation of the
cross section of the center, about the position of the air
pump?

A. I would say it is a very poor representation of
that machine.

Q. Wherein is it poor?

A. These things are not relatively the same size, this
one and this one.

Q. You say it is not relatively the same?

A. They are not in the same proportion in the ma-
chine as this shows them.

Q. What do you say about the distance in there, as-
suming this marked ''air pump" is the air pump?

A. I do not think there is as much space in this draw-
ing as there is in the machine.

Q. You do not think there is as much space here as
on the machine?

A. I do not think so.

Q. This phone you mentioned there in the office, that
was the office where the phone was in respect to all of
the work in this city wasn't it?

A. That was headquarters for the Barber Asphalt
Paving Company.

BE IT REMEMBERED FURTHER that plain-
tiff's exhibits 1 to 9, and the defendant's exhibit 4 ac-
companying this bill of exceptions and certified to by this
Court were duly identified as pictures and diagrams of

The Barber Asphalt Paving Company. 57

said plant and as tending to show its character and na-
ture and were duly offered and were admitted in evidence
and that there was no other or further testimony or evi-
dence in said case offered upon either side showing or
tending to show the character, dimensions or situation
of said plant or the process carried on at the same or
bearing in any way upon the question of whether or not
the said cause came within the Factory Act hereinbefore
alluded to except the foregoing including said exhibits.

AND BE IT FURTHER REMEMBERED that
after the close of the plaintiff's case in chief and after
he had rested, the defendant moved the court for a non-
suit, which motion after argument was then and there
denied and an exception requested by the defendant to
said order was duly allowed.

AND BE IT FURTHER REMEMBERED that
after the defendant had submitted its evidence and rested
and after the rebuttal, evidence of the plaintiff had been
submitted and the plaintiff rested and the case was
closed, the defendant challenged the sufficiency of the
evidence on the whole case to warrant submitting the
case to the jury, and moved the court that the case be
taken from further consideration of the jury and judg-
ment rendered in favor of the defendant on the ground
that neither the evidence on the plaintiff's case in chief
nor on the whole case warranted a finding of any kind
against the defendant, which motion the court, then and
there, overruled, and an exception allowed, stating that
he would entertain a motion for a judgment notwith-
standing the verdict in event a verdict was returned
against the defendant.

58 E. L. Casey v.

AND BE IT FURTHER REMEMBERED, that,
after the arguments in the case, it was duly submitted
by the Court to the jury, which returned a verdict in fa-
vor of the plaintiff in the sum of $7,500.00.

AND BE IT FURTHER REMEMBERED that
thereupon, in open court, the defendant moved the Court
for a judgment for the defendant notwithstanding the
verdict, the hearing on which w^as continued to a later
day and judgment was entered in accordance with said
verdict, subject, however, to the defendant's said mo-
tion.

And be it further remembered that the Court, having
listened to argument upon said motion, and taken the
same under advisement, did, on the 2d day of January,
1912, set aside the judgment and verdict in said cause
and in favor of the plaintiff, and entered an order ad-
judging that the defendant have judgment against the
plaintiff notwithstanding the verdict for its costs and
disbursements made and expended in said action, and
that said cause be dismissed, to which order of the Court
the plaintiff then and there excepted, and the exception
was allowed.

And now this Bill of Exceptions having been prepared
and submitted within the time heretofore fixed by the
order of the Court, and having been corrected and
amended by the Court until the same states the facts
bearing upon the case, the same is now signed and made
a part of the records of said cause this 13th day of April,
1912.

(Signed) FRANK H. RUDKIN,

Judge,

The Barber Asphalt Paving Company. 59

Endorsements : Due and legal and timely service of
the foregoing proposed bill of exceptions upon me at
Spokane, Washington, is hereby acknowledged.
(Signed) POST, AVERY & HIGGINS,

Attorneys for Defendant,
Bill of Exceptions.
Filed April 13, 1912.

W. H. HARE, Clerk.
By E. E. WRIGHT, Deputy.

In the District Court {Previously Circuit Court) of the
United States for the Eastern District of Wash-
ington, Southern Division.
T. L. CASEY,

Plaintiff,
vs.
THE BARBER ASPHALT PAVING COMPANY,

Defendant.
ASSIGNMENT OF ERRORS.
The plaintiff in the above entitled action, and plaintiff
in error herein, having petitioned for an order from said
Court permitting him to procure a writ of error to the
Court, directed from the United States Circuit Court
of Appeals for the Ninth Circuit, from the judgment
made and entered in the said cause against plaintiff, and
the petitioner herein, and in favor of the defendant, The
Barber Asphalt Paving Company, now makes and files
with the petition the following specifications as his as-
signments of error herein, upon which he will rely for
the reversal of said judgment upon the said writ; and
says that in the record and proceedings in the above

60 E. L. Casey v.

entitled cause, upon the hearing and determination
thereof in the Circuit Court of the United States for the
Eastern District of Washington, there is manifest error
in this, to-wit:

1. That the said Court erred in granting and allow-
ing the defendant's motion to set aside the verdict in
favor of plaintiff for seventy-five hundred dollars
($7,500), previously entered in said cause and for a
judgment in favor of defendant notwithstanding said
verdict.

2. That said Court erred in ordering and adjudging
that the judgment in favor of plaintiff for the said sum
of $7,500 theretofore entered in said cause be set aside
and in setting aside and vacating the same.

3. That the said Court erred in ordering and ad-
judging that the plaintiff take nothing in said action and
that the said action be dismissed.

4. That the said Court erred in ordering and adjudg-
ing that the defendant have and recover of and from the
plaintiff its costs and disbursements to be taxed in said
action.

5. That the said Court erred in refusing and failing
to sustain the judgment and verdict in favor of plaintiff
previously entered in said cause.

(Signed) BENNETT & SINNOTT,
(Signed) J. G. THOMAS and W. A. TONER,
Attorneys for Plaintiff and Plaintiff in Error.

Endorsements: Service of the within Assignment

The Barber Asphalt Paving Company. 61

admitted and the receipt of a true copy thereof acknowl-
edged this 24th day of June, 1912.

(Signed) POST, AVERY & HIGGINS,

Attorneys for Defendant,
Assignment of Errors.
Filed June 24, 1912.

W. H. HARE, Clerk.
By F. C. NASH, Deputy.

In the District Court {Previously Circuit Court) of the
United States for the Eastern District of
Washington, Southern Division.
E. L. CASEY,

PlaintifF,
vs.
THE BARBER ASPHALT PAVING COMPANY,
a Corporation,

Defendant.
PETITION FOR WRIT OF ERROR.
To the Honorable Judge of the Circuit Court of the
United States for the Eastern District of Wash-
ington :
Your petitioner herein, E. L. Casey, the plaintiff in
the above entitled cause, brings this, his petition for a
Writ of Error, to the Circuit Court of the United
States for the Eastern District of Washington, and
thereupon your petitioner shows:

That on the 2d day of January, 1912, there was en-
tered and rendered in the above entitled Court in the
above entitled cause a judgment against your petitioner,
and in favor of the above named defendant, The Barber

62 E. L. Casey v.

Asphalt Paving Company, wherein whereby said de-
fendant obtained a judgment setting aside the verdict
and judgment previously entered in said cause in favor
of the plaintiff and vacating the same and ordering that
said action be dismissed and that plaintiff take nothing
therein, and that the defendant have and recover its
costs and disbursements from the plaintiff; and your
petitioner shows that he is advised by counsel that there
was manifest error in the records and proceedings had
in said cause, and in the rendition of the said judgment,
to the great injury and damage of your petitioner, all
of which error will be more fully made to appear by an
examination of the said record, and more particularly
by an examination of the bill of exceptions by your peti-
tioner tendered and filed therein, and in the assignment
of error thereon, hereinafter set out, and to the end,
therefore, that the said judgment and proceedings may
be reviewed by the United States Circuit Court of Ap-
peals for the Ninth Circuit, your petitioner now prays
that writ of error may be issued, directed therefrom
to the said Circuit Court of the United States for the
Eastern District of Washington, returnable according
to law and the practice of the Court, and that there may
be directed to be returned pursuant thereto, a true cop)'-
of the record, bill of exceptions, assignments of error
and all proceedings had in said cause, that the same may
be removed into the United States Circuit Court of Ap-
peals for the Ninth Circuit, to the end that the error,
if any hath happened, may be duly corrected and full
and speedy justice done your petitioner.

The Barber Asphalt Paving Company. 63

And your petitioner now makes the assignments of
error attached hereto, upon which he will rely, and which
will be made to appear by a return of the said record, in
obedience to said writ.

Wherefore, your petitioner prays the issuance of a
writ, as hereinbefore prayed, and prays that the assign-
ments of error annexed hereto may be considered as
his assignments of error upon the writ, and that the
judgment rendered in this cause may be reversed and
held for naught, and said cause be remanded for fur-
ther proceedings.

(Signed) E. L. CASEY,

Plaintiff.
(Signed) BENNETT & SINNOTT,
(Signed) J. G. THOMAS and W. A. TONER,

Attorneys for Plaintiff.
Endorsements: Service of the foregoing petition
admitted and receipt of a true copy acknowledged this
24th day of June, 1912.

(Signed) POST, AVERY & HIGGINS,

Attorneys for Defendant.
Petition for Writ of Error.
Filed June 24, 1912.

W. H. HARE, Clerk.
By F. C. NASH, Deputy.

64 E. L. Casey v.

In the District Court {Previously Circuit Court) of the

United States for the Eastern District of

Washington, Southern Division,

E. L. CASEY,

Plaintiff,

vs.

THE BARBER ASPHALT PAVING COMPANY,
a Corporation,

Defendant.

ORDER ALLOWING PETITION FOR WRIT OF

ERROR.

Now, at this time, comes the plaintiff in the above en-
titled cause, by J. G. Thomas and W. A. Toner, and
Bennott & Sinnott, his attorneys, and presents to the
Court his petition praying for the allowance of a writ
of error from the United States Circuit Court of Ap-
peals for the Ninth Circuit, and also the bond of said
plaintiff for costs on such writ of error, with sureties
in the sum of two hundred fifty dollars ($250),
Whereupon, it is ordered that the prayer of said peti-
tion be granted, and that the Clerk of this court be, and
he is hereby, directed to issue the writ prayed for in said
petition, and that said bond be, and the same is hereby
approved.

Dated this 24th day of June, 1912.

(Signed) FRANK H. RUDKIN,

Judge.

Endorsements: Service of the foregoing order ad-

The Barber Asphalt Paving Company. 65

mitted and receipt of a true copy thereof acknowledged
this 24th day of June, 1912, at Spokane, Washington.
(Signed) POST, AVERY & HIGGINS,

Attorneys for Defendant.
Order allowing Writ of Error.
Filed June 24, 1912.

W. H. HARE, Clerk.
By F. C. NASH, Deputy.

In the United States Court of Appeals for the Ninth

Circuit.
E. L. CASEY,

Plaintiif in Error,
vs.
THE BARBER ASPHALT PAVING COMPANY,
a Corporation,

Defendant in Error.
WRIT OF ERROR.
(Lodged Copy.)
THE UNITED STATES OF AMERICA— ss.
The President of the United States of America to the
Judge of the District Court (Previously Circuit
Court) of the United States for the Eastern District
of Washington, Greeting:
Because of the records and proceedings, as also in the
rendition of the judgment of a plea which is in the Dis-
trict Court (previously Circuit Court) before the
Honorable Frank H. Rudkin, Judge of said Court, be-
tween E. L. Casey, plaintiff in error, and The Barber
Asphalt Paving Company, defendant in error, a mani-
fest error hath happened, to the great damage of the

66 E. L. Casey v.

said plaintiff in error, as by complaint doth appear ; and
we being willing that error, if any hath been, should be
duly corrected and full and speedy justice done to the
parties aforesaid, and in this behalf, do command you,
if judgment be therein given, that then, under your seal,
distinctly and openly, you send the record and proceed-
ings aforesaid, with all things concerning the same, to
the United States Circuit Court of Appeals for the Ninth
Circuit, together with this writ, so that you have the
same at San Francisco, California, within thirty days
from the date hereof, in the said Circuit Court of Ap-
peals to be then and there held ; that the record and pro-
ceedings aforesaid being then and there inspected, the
said Circuit Court of Appeals may cause further to be
done therein to correct that error, what of right and
according to the laws and customs of the United States
of America should be done.

Witness the Honorable Edward Douglass White,
Chief Justice of the Supreme Court of the United States,
this 24th day of June, 1912.

(Signed) W. H. HARE,
Clerk of the District Court of the United States for the

District of Washington.

(Seal)

Endorsements: Writ of Error (Lodged Copy).

Filed June 24, 1912.

W. H. HARE, Clerk.

The Barber Asphalt Paving Company. 67

In the District Court {Previously Circuit Court) of the
United States for the Eastern District of
Washington, Southern Division.
E. L. CASEY,

Plaintiff,
vs.
THE BARBER ASPHALT PAVING COMPANY,
a Corporation,

Defendant.
BOND ON WRIT OF ERROR.
KNOW ALL MEN BY THESE PRESENTS, That
we, E. L. Casey, as Principal, and American Surety-
Company, of New York, as Surety, are held and firmly
bound unto The Barber Asphalt Paving Company, a
corporation, in the sum of Two Hundred Fifty
($250.00) Dollars, to be paid to The Barber Asphalt
Paving Company, or its successors or assigns, to which
payment well and truly to be made, we bind ourselves,
and each of us jointly and severally, and our and each
of our heirs, executors, administrators, successors and
assigns, firmly by these presents.

Sealed with our seals and dated this 22d day of June,
1912.

WHEREAS, the above named, E. L. Casey, has ap-
plied for a writ of error to the United States Circuit
Court of Appeals for the Ninth Circuit, to reverse the
judgment in the above entitled cause by the Circuit
Court of the United States for the Eastern District of
Washington ;

NOW, THEREFORE, the condition of this obliga-
tion is such that if the above named E. L. Casey shall

68 E. L. Casey v,

prosecute said writ to effect, and answer all costs if he
shall fail to make good his plea, then this obligation shall
be void ; otherwise to remain in full force and virtue.

E. L. CASEY (Seal)

AMERICAN SURETY COMPANY
OF NEW YORK.
By A. G. Baumeister, Resident Vice
President.
(Corporate Seal) Attest: EDWARD C. MILLS,

Resident Assistant Secretary.
Executed in the presence of :
JULIA RAY.
A. G. BAUMEISTER.
Approved June 24, 1912.

(Signed) FRANK H. RUDKIN,

Judge.
Endorsements: Service of the foregoing bond ad-
mitted and receipt of a true copy thereof acknowledged
this 24th day of June, 1912.

(Signed) POST, AVERY & HIGGINS,

Attorneys for Defendant.
BOND ON WRIT OF ERROR.
Filed in the U. S. District Court for the Eastern Dis-
trcit of Washington, June 24, 1912.

W. H. HARE, Clerk.
By F. C NASH, Deputy.

j

The Barber Asphalt Paving Company. 69

In the District Court {Previously Circuit Court) of the

United States for the Eastern District of

Washington, Southern Division,

E. L. CASEY,

Plaintiff,

vs,

THE BARBER ASPHALT PAVING COMPANY,
a Corporation,

Defendant.

CITATION.

(Lodged Copy.)

UNITED STATES OE AMERICA,
Eastern District of Washington — ss.

To The Barber Asphalt Paving Company, a Corporation,
Greeting :

You are hereby cited and admonished to be and ap-
pear before the United States Circuit Court of Appeals
for the Ninth Circuit, at San Francisco, CaHfornia,
within thirty (30) days from the date hereto, pursuant
to a Writ of Error filed in the Clerk's office of the Cir-
cuit Court of the United States (now District Court)
for the Eastern District of Washington, wherein E. L.
Casey is the plaintiff in error and said The Barber As-
phalt Paving Company is defendant in error, to show
cause, if any there be, why the judgment in the said
Writ of Error mentioned should not be corrected and
speedy justice should not be done to the parties in that
behalf.

70 E. L. Casey v.

Given under my hand at Spokane, in said District,
this 24th day of June, 1912.

(Seal) FRANK H. RUDKIN,

Judge,
Endorsements: Citation (Lodged Copy).
Filed June 24, 1912.

W. H. HARE, Clerk.

In the District Court {Previously Circuit Court) of the
United States, for the Eastern District of
Washington, Southern Division.
E. L. CASEY, Plaintiif,

vs.
THE BARBER ASPHALT PAVING COMPANY,
a Corporation,

Defendant.
ORDER TO SEND UP ORIGINAL EXHIBITS.
Now on this day came on for hearing the above en-
titled matter on the motion of plaintiff to send up the
original exhibits with the Bill of Exceptions on writ of
error to the Circuit Court of Appeals, and the Court
having considered the matter,

IT IS ORDERED BY THE COURT that the plain-
tiff's original exhibits numbered one to nine, inclusive,
and defendant's original exhibit numbered four, be sent
with the Bill of Exceptions in this case.

(Signed) FRANK H. RUDKIN,

Judge.
Endorsements : Order to send up Original Exhibits.
Filed June 24, 1912.

W. H. HARE, Clerk.

The Barber Asphalt Paving Company. 71

UNITED STATES OF AMERICA,
Eastern District of Washington — ss.

I hereby certify that the above and foregoing ex-
hibits, marked Plaintiff's Exhibits 1 to 9, and De-
fendant's Exhibit 4, are the original exhibits introduced
in evidence in said cause ; that the same are now hereby
certified for the purpose of making them part of the
record herein, in order that the same may be reviewed
and considered in the Appellate Court.

Dated this 24th day of June, 1912.

(Signed) FRANK H. RUDKIN,

Judge.

Endorsements: Certificate of Judge to Original Ex-
hibits.

Filed in the U. S. District Court for the Eastern Dis-
trict of Washington, June 24, 1912.

W. H. HARE, Clerk.

In the District Court {Previously Circuit Court) of the
United States for the Eastern District of
Washington, Southern Division.
E. L. CASEY,

Plaintiff,
vs.
THE BARBER ASPHALT PAVING COMPANY,
a Corporation.

Defendant.
PRAECIPE.
To the Clerk of the Above Entitled Court:

Please prepare, print and transmit to the Circuit Court
of Appeals for the Ninth Circuit, sitting at San Fran-

72 E. L, Casey v.

Cisco, the following items of record in the above entitled
cause, to-wit:

1. Plaintiff's complaint in said cause.

2. The defendant's answer therein.

3. Plaintift*'s reply.

4. The bill of exceptions in this cause.

5. The verdict therein.

6. The judgment in favor of the plaintiff on the
verdict in said cause.

7. The judgment and order in favor of the de-
fendant setting aside the verdict and judgment
previously entered in favor of plaintiff, and
ordering and adjudging that the plaintiff take
nothing and that the cause be dismissed and that
the defendant have and recover from the plain-
tiff its costs and disbursements made and ex-
pended in said action.

8. The motion of defendant for judgment notwith-
standing the verdict.

9. Plaintiff's petition for writ of error with proof
of service thereon.

10. The order of the Court allowing said writ of
error.

11. Bond of the plaintiff for said writ.

12. Writ of error in said cause, with proof of service
thereon.

13. Citation of this cause, with the proof of service
thereon.

14. The opinion of the Court on the motion to set
aside the verdict in this cause.

15. Judge's certificate to exhibits.

The Barber Asphalt Paving Company. 72>

16. Order sending up original exhibits.

17. Praecipe for transcript.

18. Assignment of Errors.
(Signed) BENNETT & SINNOTT.
(Signed) J. G. THOMAS and W. A. TONER.
Attorneys for the Plaintiff and Plaintiff in Error.

Endorsements: Praecipe for transcript of record.
Filed June 24, 1912.

W. H. HARE, Clerk,

No. 268.
In the District Court of the United States for the East-
ern District of Washington, Southern Division.
E. L. CASEY,

Plaintiff,
vs,
THE BARBER ASPHALT PAVING COMPANY,
a Corporation,

Defendant,
CLERK'S CERTIFICATE TO TRANSCRIPT OF

RECORD.
United States of America,
Eastern District of Washington. — ss.

I, W. H. HARE, Clerk of the District Court of the
United States for the Eastern District of Washington do
hereby certify the foregoing printed pages, numbered
from one to 73 inclusive, to be a full, true, correct and
complete copy of so much of the record, papers and other
proceedings as called for by the plaintiff in error in his
praecipe as the same appears on page 71 of this trans-
cript, as the same remain of record and on file in the

74 E. L. Casey v,

office of the Clerk of said District Court, and that the
same constitute the record on Writ of Error from the
judgment of the District Court of the United States for
the Eastern District of Washington, to the Circuit Court
of Appeals for the Ninth Judicial Circuit, San Francisco,
California.

I further certify that I hereto attach and herewith
transmit the original Writ of Error and the original Ci-
tation issued in this cause.

I further certify that the cost of preparing, certify-
ing and printing the foregoing transcript is the sum of
$92.90, and that the same has been paid to me by Ben-
nett & Sinnot and Thomas & Toner, attorneys for plain-
tiff and plaintiff in error.

IN WITNESS WHEREOF, I have hereunto set my
hand and affixed the seal of said District Court at Spo-
kane, in said District, this 6th day of July, 1912.

(Signed) W. H. HARE,
(Seal) ' Clerk,

I

No. 2161

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE NINTH CIRCUIT

E. L. CASEY,

Plaintiff in Error,

vs.

THE BARBER ASPHALT PAVING
COMPANY, a corporation.

Defendant i/n Error,

Upon Writ of Error to the United States Circuit Court for tlie

a District of Wash
Eastern Division.

Eastern District of Washington.

BRIEF OF PLAINTIFF IN ERROR

J. G. THOMAS and
W. A. TONER

Walla Walla, Washington ;

BENNETT & SINNOTT,

The Dalles, Oregon ;

Attortieys for Plaintiff in Error,

BITLLBTIN PRINTINO CO., WAU^A M'AI^L.A

FILED

CASEY vs. BARBER ASPHALT COMPANY

Index to Brief of Plaintiff in Error

Pages
Statement of the Case ....... 2-3

Factory Act ........ 4-5

General Discussion of Act . . . . 6, 7 and 8

Definitions of ''Factory* and use of word by Legisla-
tive Bodies ..... 10 and I I

Definition of "Factory" and "Mill" in Washington Act

of 1911 13 and 14

Such subsequent definitions persuasive 14, 15, 16 and 17

Dictionary definition of "mill" . . . . 17

Argument that because some provisions of Act apply
to conditions in buildings, all must be narrowed
to such conditions unfounded . . 20 and 2 1

The word "in" in title does not refer to building or

enclosure . . . . . . 21 and 22

The grinding and mixing of Asphalt paving a process

of "manufacture" . . . . 23, 24 and 25

Testimony as to character and extent of manufacture 26 to 32

Remedial Statutes for the protection cf human life and

limb liberally construed ... 33 and 34

See also Johnson vs. S. P. 1 96 U. S. 1 , 9

Distinction between "manufacturing" and "agricul-
tural" machinery ...... 35

Distinction between this plant and small hand power

machines ...... 36

Permanence of plant considered . . 36 and 37

Case of Griffith vs. Ice Mountain Co:, 65 At. 853

discussed ....... 38

m. 2161

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE NINTH CIRCUIT

E. L. CASEY,

Plaintiff in Error,
vs.
THE BARBER ASPHALT PAVING
COMPANY, a corporation.

Defendant in Error,

Upon Writ of Error to the United States Circuit Court for the

Eastern District of Washington.

Eastern Division.

BRIEF OF PLAINTIFF IN ERROR

J. G. THOMAS and
W. A. TONER and
BENNETT & SINNOTT,

Attorneys for Plaintiff in Error,

STATEMENT OF CASE

This was an action brought by the plaintiff under the
Factory Act of the State of Washington, to recover dam-
ages for an injury caused by being caught in a revolving
shaft while working in the defendant's plant for the man-
ufacture of asphalt paving, at Walla Walla, Washington.

There was a verdict and judgment for the plaintiff,
and afterwards this verdict was set aside, and the Court
ordered a judgment in favor of the defendant notwith-
standing the verdict, on the ground that the plant in
question was not a factor^^ or mill, within the meaning
of the Act.

There is onlj^ one question in the case, and that is
whether or not a plant like that of the defendant was a
factory or mill, within the meaning of the before men-
tioned factory Act.

The defendant was engaged in the manufacture and
laying of asphalt pavement, and for that purpose had
located one of its plants at Walla Walla.

The plant in question consisted of a large amount of
heavy machinery, altogether weighing about 180 tons.
The greater part of this machinery was assembled upon
a large flat car, about 00 feet long, and 10 feet wide,
specially constructed for the purpose. This car was so
built that it couhl be run from place to place on the
railroad track, ^^'hen it was desinnl to locate tlie plant
at a particular place, a side track would be built from
the main track, and the car with the heavy machinery
run in to the dc^innl location. It wouhl then be made

the center of the plant. The side track connecting with
the main track would be torn up, and around the
machinery on the car would be constructed such offices,
tool sheds, platforms, engine houses and connecting ap-
purtenances as would be necessary for the carrying on
of the plant. In this particular instance, these appur-
tenances consisted of an office building, a tool shed, a
hopper built of timber and lumber and set into the
ground for the deposit of material to be carried up into
the elevators; and platforms extending out on each side
of the floor to the flat car, and supported by iron braces
resting on the ground.

The business carried on was the manufacture of
material for asphalt paving, on a large scale, and the
machinery was in the nature of a mill for the feeding,
grinding and mixing, and preparing crushed rock, sand,
concrete and asphalt, in the process of manufacturing
such paving.

The machinery consisted, as we have said, of a large
number of heavy geared iron wheels, some of them five
or six feet across, meshed into each other, connected
by heavy shafting, and the gearing so combined as to
move the heavy part of the machinery — the conveyors, the
drums in which the material was heated, the mill in which
it was mixed, etc.

A force of about six or eight men were constantly
emploj^ed about the plant.

The heavy character of the mill and the extent of the
machinery is partially shown by plaintiff's exhibit 9 and 5
which are reproduced on the pages following.

The large gear shown on exhibit 9 was some five or
six feet in diameter, and the balance of the machinery
in proportion.

The Court below held that the Factory Act applied
only to enclosed huildings, and upon that ground granted
the motion for judgment notwithstanding the verdict.

ASSIGNMENTS OF ERROR.

Assignments of error upon which plaintiff relies are
as follows:

"1. That the Court erred in granting and allowing
the defendant's motion to set aside the verdict in favor of
plaintiff for seventy-five hundred dollars ($7,500), pre-
viously entered in said cause and for a judgment in favor
of defendant notwithstanding said verdict.

2. That said Court erred in ordering and adjudging
that the judg ment in favor of plaintiff for the said sum
of fT,500 theretofore entered in said cause be set aside
and in setting aside and vacating the same,

3. That the said Court erred in ordering and ad-
judging that the plaintiff take nothing in said action and
that the said action be dismissed.

o

Z

X
X

UJ
c/3

<

a.

4. That the said Court erred in ordering and axi-
judging that the defendant have and recover of and
from the plaintiff its costs and disbursements to be taxed
in said action.

5. That the said Court erred in refusing and failing
to sustain the judgment and verdict in favor of plaintiff
previously entered in said cause."

ARGUMENT

As we have already seen, the only question involved
is whether or not the defendant's plant in question was
a "factory'' or "mill" within the meaning of Section 1 of
the Act of March 6th, 1905, (as amended in 1907).

This section, in so far as it bears upon this case, is
as follows:

"Section 1. That any person, firm, corporation, or
association operating a faetory, mill or workshop where
machinery is used, shall provide and maintain in use
* * * * reasonable safeguard for all vats, pans, trimmers,
cut offs, gang edgers and other saws, planes, cogs, gear-
ing, belting, shafts, coupling, set screws, live rollers, con-
veyors, mangles in laundries and machinery of other or
similar description, which it is practical to guard. * * ♦ *"

5

The Avhole case hinges upon the meaning of the words
"factories," "mills" and "workshop" as used in the above
section. The Court below held that this applied only to
buildings in which manufacturing operations were carried
on. The plaintiff, on the other hand, claims that this con-
struction is too narrow and strained, and that the question
of whether a given establishment is a factory or not is
governed by the character and extent of the husiness car-
ried on, rather than by the presence or absence of a build-
ing or shell.

It seems to us, and we submit to the Court, that the
plant or mill in question were so clearly within the mean-
ing of the terms "factory" and "mill" as used by the
legislature, that it is hardly necessary to seek for the
intent of the legislature, from the purposes or objects of
the legislation, or to invoke the all pervading rule, that
beneficial laws intended for the protection of human life
and limb will be liberally construed.

We make no question but that the words "factory ana
mill" are sometimes used in as narrow a sense as claimed
by the defendant herein, and refer to a building in which
manufacturing or milling operations are carried on. One
might say, "We will go down to the old mill, or the old
factory," even when no manufacturing business was being
carried on, or even when all the machinery had been taken
out and we would not then be referring to the "plant" at
all ; but we do not believe that was the sense in which
the words were used bv the legislature.

Tlie words have another, broader and more common
mc^aning, and one far more consistent with the generaj
purpose of this Act.

Both the words "factory" and "milF' oftentimes,
though not always, cover the same establishment. We
claim that this is one of those cases, and that the plant or
establishment in question was both a factory and a mill,
within the meaning of the law.

We claim that "factory" as used by the legislature re-
ferred to the plant or premises wherein manufacturing
business is carried on by machinery, without regard to
whether it was enclosed by walls or not, and that the
AYord "mill" has the same signification with regard to any
kind of milling business.

Many kinds of mills are commonly operated in the
open. This is especially true of the so-called portable
saw mills, and it is also true of many factories.

So far as the evils to which this section of the law is
addressed, the danger to the employe is not affected in the
slightest degree by the consideration of whether or not
the plant is in a building, or surrounded by walls. The
danger of the employe being caught by uncovered gearing,
or shafting, or set screws, is just the same, whether the
plant is, or is not enclosed by walls, and the character
of the business is just the same.

It seems to us absurd to suppose that the legislature
intended to create limitation to the benefits of this Act,
where there was absolutely no distinction in the character
of the business or the danger invoh^ed, and no reasonable
ground for the limitation, whatever, and to say that a man
who carried on a manufacturing or milling business should
be liable for unguarded shafts, gearing, and set screws

if he built a uxill around his plant, and that he should
not be liable if he tore away the loall, or never built it at
all — that the legislature intended to say that the owner
of a plant like this in question should be liable if he
operated in a building, but that he could escape all liability
by placing the same, massive, complicated machinery on a
flat car, in the midst of the offices, buildings, and appurte-
nances necessary to his plant, but without putting a frame
foundation under it, or a wall around it.

So far as we can find, the very question here has
never been presented to any Court, but the construction of
other similar acts, in relation to other similar cases, and
the construction of this act in relation to other questions
has never been so narrow or strained.

In the Kans. case of Fisher vs. Company, 100 Pac,
508, the Factory Act only protected an employe while he
was ^'engaged'' in his Avork. The plaintitf was injured
while taking his turn at rest. It was contended that he
was not within the exact terms of the law, but the Court
re-fused to adopt the narrow construction, and held the
Company liable.

In Matthews vs. Company (Ind.) 92 Northeastern
199, the Act p7*ovide<l for the protection of ''shafts" and
''shaftings," but said notliing about "pulleys.'' The plain-
titf was injured by a ])ully revolving on a shaft. The
Court adoptcNl a liberal construction, and held that pulleys
were includt^l within the spirit of the law.

In Johnson vs. Southern Pacific, 190 Unitcnl States,
1, th(^ statute under consideration was that generally
known as the "Coupling Act," and ])rovided in effect that

couplers should be provided far all "cars." The injury
in question was caused by the lack of a proper coupler
upon a "locomotive."

There, as here, the word "car" had two meanings;
one of which was broad enough to include "locomotive,"
and the other was not. There, as here, it was contended
that the narrow and rCTricted meaning should be applied,
but the Court refused so to do, saying:

"But where the words are general, and include vari-
ous classes or persons, I know of no authority which

would justify the Court in restricting them to one class,
or in giving them the narrowest interpretation ^ where
the mischief to he redressed hy the statute is equaiiif
applicable to all of them. And where a word is used in
a statute which has various known significations, I know
of no rule that requires the Court to adopt one in prefer-
ence to another, simply because it is more strained, if the
objects of the statute equally apply to the largest and
broadest sense of the word. In short, it appears to me
that the proper course in all these cases is to search out
and follow the true intent of the legislature, and to adopt
that sense of the words which harmonizes best with the
context, and promotes in the fullest manner the apparent
policy and objects of the legislature/^

In Ward vs. National Lumber Company, 54 Wash.,
304, this very Act was under construction. The plaintiff
was injured there by an unguarded friction wheel, which
was not named in the statute, and was not even similar
to any other part of the machinery which was named. The
Court refused to adopt the narrow construction, and held
the company liable.

9

We cite these cases simply to show that in interpreting
legislation for the protection of human life and limb, the
Courts have uniformly refused to take a narrow or re-
stricted view, or to adopt a narrower meaning, where
a word used has two meanings, for the purpose of elim-
inating liability where the conditions so far as the char-
acter of the business and the danger to the employe were
the same.

There can be no question, and we think there will be
no contention but what the words ^^factory" and "milP'
each haye a meaning and definition recognized by the
lexicographers, and by the Courts amply broad enough
to include the plant in question.

One of the definitions of "factory'" giyen by Webster
is, "The plaee where workmen are employed in fabricating
goods, wares, or utensils; "a manufactory," and "manu-
factory'^ is defined by the same author as — "A building
or place where anything is manufactured."

In Hernischel ys. Texas Drug Company, Tex. 61,
Southwestern 420, it is said :

"In the Enjxlisli law the term 'factory' includes all
bnihlings or prctniM^s wherein or within the close or curti-
lage of which steam, water, or any mechanical power is
used to moye or work any machinery employed in prepar-
ing, manufacturing, or finishing, cotton, wool, hair, silk,

10

hemp or tow. Later this definition was extended to other
manufacturing places. The American legal definition of
the word is practically the same/^

The meaning with which a word has been used by
legislative bodies is often referred to by lexicographers
as helping to establish its meaning, the same as the use
of words by writers and authors is recognized as of more
or less authority.

We can think of no better way of ascertaining what
a legislative body meant by the use of a particular word,
than by finding out in what sense other legislative bodies
had generally used the same word previous to the action
of the legislature in question.

The word "factory" had been used and defined prior
to 1905 and 1907 by many different legislative bodies,
both in England and in the United States.

In England as we have already seen, the statute de-
fined it as "all buildings or premises wherein" etc.

The legislature of Massachusetts in 1902 (Revised
Laws of ^lassachusetts 1902, page 916, Chapter 106, Sec.
8) defines factory as ^^any premises where steam, water, or
other mechanical power is used in the aid of any manu-
facturing process there carried on."

The same definition is contained in the General
Statutes of Kansas, 1901, Section 6650, and in the Revised
Statutes of Missouri, 1809, Section 10104.

^ 11

In 1894 the General Statutes of Minnesota, Section
2264, defined "factory^' or "mill" as ^^Any premises where
steam, water, or other mechanical power is used in the
aid of any manufacture." All these provisions were in
use and effect long prior ot the adoption of the Factory
Act in the State of Washington and all of them make
the definition refer to place rather than building.

We think then, and submit to the Court, that it is
only fair to assume that the legislature used the word
"factory" in this broader sense in which it had at that
time been so frequently used b}^ other legislative bodies.
Courts and lexicographers, and that it was used to de-
scribe the place, premises or establishment; the under-
taking where any kind of manufacturing was carried on.

We submit, further, that the Act itself, as well as
subsequent legislation of the same state upon the same
subject shows that this boarder meaning, and not the
narrow meaning contended for by the defendant was the
one with which the word was used. The second Section
of this Act, which is Section 6588 of the Code, deals
with a different condition than the preceding section.
That is, with conditions which could only occur within
doors, viz. : bad ventilation, and therefore the legislature
very properly saw fit to limit it to factories, mills and
worksh()])s "within an enclosed room." This limitation
would have been (entirely unnecessary if "all" factories,
mills or workshops must necessarily bo in enclose<l rooms.

12

And we submit to the Court that it is very plain that
where the legislature limits the operation of the Statute
to buildings, or closed rooms in the matter of ventilation,
but leaves it unlimited as to the protection of gears, and
machinery, that it intended one provision to apply only
inside of buildings, and the other to all factories and
mills whether operated in an enclosure or not.

Again, the construction of this Act, and the defini-
tion of the word for which we contend, is further sup-
ported by subsequent legislative construction. In 1911,
the legislature of the state of Washington passed the Act
of March 14th, Session Laws of 1911, page 345. This
Act was in pari materia with the Act in question, and
the second section uses almost the same words as are used
in the Act in question, viz. : "Factories, mills and work-
shops where machinery is used," and section 3 of the
Act defines such words as follows:

"Factories mean undertakings in which the business
of working at commodities is carried on with power-
driven machinery, either in manufactures, repair or
change, and shall include the premises, yard and plant
of the concern.

Workshop means any plant, yard, premises, room or
place wherein power-driven machinery is employed and
manual labor is exercised by way of trade for gain or
otherwise in or incidental to the process of making, alter-
ing, repairing, printing or ornamenting, finishing or
adapting for sale or otherwise any articles or part of
article, machine or thing, over which premises, room or
place the employer of the person working therein has the
right of access or control.

13

Mill means any plant, premises, room or place where
machinery is used, any process of machinery, changing,
altering or repairing any article or ocmmodity for sale
or otherwise, together with the yards and premises which
are a part of the plant, including elevators, warehouses
and bunkers."

We do not concede that even outside of this inter-
pretation, there would be any doubt but what the con-
struction we have submitted to the Court of this Section,
is a correct one; but if there is doubt, then this subse-
qeunt use of exactly the same words on the same general
subject by the legislature of the same state is entitled
to great weight as tending to show the probable sense
in which the words were used in the prior enactment.

Coutant vs. The People, 11 Wendel, 512.

Amer. & Eng. Encyclopedia of Law, Second Edi-
tion, volume 26, page 624, note C.

Alexander vs. The Mlayor, 5 Crauch, 2.

3 Cooperative Law, page 21.

In the last case before the Supreme Court of the
UnittMl States, the Court was construing an Act of the
state of Virginia of the year 1779, and there was another
Act of the Virginia legislature of 1796 (17 years later),
which was offered as assisting in the construction of the
first Act.

Chief Justice ^Larsliall in delivering the opinion
says:

14

"Without deciding this questions as depending
merely on the original law, it is to be observed that acts
in pari materia are to be construed together as forming
one act. If in a subsequent clause of the same act pro-
visions are introduced which show the sense in which the
legislature employed doubtful phrases previously used,
that sense is to be adopted in construing those phrases.
Consequently, if a subsecjuent act on the same subject af-
fords complete demonstration of the legislative sense of
its own language, the rule which has been stated, requir-
ing that the subsequent should be incorporated into the
foregoing act, is a direction to courts in expounding the
provisions of the law."

The learned judge in the Court below disposes of
this legislative construction by assuming that the defini-
tion in the Act of 1911 was purely arbitrary, and without
any regard to the previous meaning of the word. It
seems to us, however, that there is little reason for this
assumption, and that it should not be lightly presumed,
that the legislature was indulging in a philological exer-
cise of this kind, or abitrarily attempting to change the
ordinary meaning of words. It should be presumed, on
the contrary, we submit, that the definition given not
only in this Act, but in the legislation of other states and
countries already alluded to, was intended to be "declara-
tory" of the true meaning of these words as understood
by the legislature, and that the legislature took pains to
fix the definition (not to change the meaning) in order
to prevent unnecessary litigation, and remove all doubt
as to the true construction of the words.

Such declaratory definitions both of words and of

15

legal rights is very common in all the Codes, and where it
is susceptible of that construction, is generally construed
as declaratory rather than otherwise.

In the Kansas case of Caspar vs. Lewin, 109 Pac.
659, Sec. 7 of the Kans. Act in question had defined the
term "manufacturing establishment," and the Court said :

"The only purpose of incorporating Sec. 7 in the
Act was to preclude a roving request for the meaning of
words. The section was designated to make the meaning
of the term ^manufacturing establishment' as it had been
used in the previous sections, so clear that there could be
no misunderstanding of just what establishments were in-
cluded. In an effort to be explicit, the draftsmen violated
the law of logic, which forbids a definition to contain the
word ^define' and Avas guilty of the ancient fallacy {cir-
cuhis in drfinendo) whereby the definition ends where it
started."

The definition of other terms in the Washington Act,
such as "mines" and "quarry," seems to bear out this con-
struction.

We contend that both of these words, ("factory" and
"mill") as used in the Act of 1907 would very clearly
include an undertaking, or establishment like the one in
question Avithout regard to these legislative constructions,
but they help to clinch the proposition that the words
were never used in the narrow meaning wliich the de-
fendant attempts to give them.

10

It will be seen that the meaning given to the word
"factory" in the Act of 1911, is practically the same mean-
ing in which the word had been universally defined prior
to 1905 and 1907 by other legislative bodies in England
and in the United States.

So the word "mill" used in the Factory Act is clearly
broad enough to include the plant in question. One of
the definitions given by Webster's Unabridged Edition,
1908, is:

"A common name for various machines which pro-
duce a manufactured product, or change the form of raw
material by continuous repetition of some action, as a
saw mill, or stamp mill."

In Rapalje and Lawrence's Law Dictionary, "mill"
is defined as follows :

First — "A machine for grinding, sawing, manufact-
uring, etc/' Also, "a building containing such machinery."

The same definition exactly is given in Black's Law
Dictionary. See also Rose vs. Insurance Company, 36
Northwestern, 596.

17

state YS. Livermore, 44 New Hampshire, 386, and
20 Amer. & Eng. Encyc. of Law, page 674.

It seems very clear to us that this was the meanins:
in which the words were used by the legislature, and
included the undertaking, estahlislunent or premises
where any kind of millino^ business is carried on.

This definition wa,s rejected by the Court below he-
cause the word ^*miH" was used by the legislature m
connection with the words "shop'- and "factory," and
attempting io apply the maxim Noscitur a soch, the Court
held that because (as assumed) the words "factory and
workshop" referretl to building, the word "mill" must
also be limited to milling operations carrieil on m a
huildinq.

18

It s^ems to us that this reasoning and application
is not natural, but exceedingly strained and labored.

In the first place, as we have already seen, a "factory''
is not necessarily a building, nor in a building, but refers
to a place y or undertaking where manufacturing business
is carried on without regard to whether or not it is sur-
rounded by walls; see definitions of "factory'' above.

And in the second place, it is obvious, it seems to
us, that these words were not associated by the legislature
as a limitation upon each other, but on the contrary
each one was added to the other for the purpose of bring-
ing in new and different conditions which might not other-
wise have been included, and with the obvious purpose of
covering manufacturing machinery under all conditions,
where the machinery was aggregated together for manu-
facturing or milling processes and operated by mechanical
power in such a way as to make the protection of human
life and limb necessary.

A similar process of reasoning to that contended for
by the defendant here applied in a slightly different way

19

was rejected by the Supreme Court of Washington in
Ward vs. National Lumber Company, 54 Wash., 304.

It was urged at the trial, and will probably be urged
again here that because some of the succeeding sections
of this Act provide for some conditions which can only
exist in buildings, that therefore the law only protects
factories, mi